


3 fulfillment of the requirements for 
the Degree of Doctor of 
Canon Law 


by the 


ae, 


EDWARD G. ROELKER, S. T. D., J. C. L., 


_ of the Archdiocese of Cincinnati. 


ake 


WASHINGTON, D. C. 
1926 


BX 1939 .P6 R6 1926 
Roelker, Edward George, 185 





Principles of Privilege 















nAY OF PRI 
H ry 
, NOV 23 1996 
LOGicAL SES 


PRINCIPLES OF PRIVILEGE 


according to 


THE CODE OF CANON LAW 


A DISSERTATION 


Submitted to the Faculty of Canon Law of the 
Catholic University of America in partial 
fulfillment of the requirements for 
the Degree of Doctor of 
Canon Law 


the 
REV. EDWARD G. ROELKER, S. T. D., J. C. L., 


of the Archdiocese Of Cincinnati. 


WASHINGTON, D. C. 


1926 


Nthil Obstat: 
t THoMAS J. SHAHAN, 
Censor Deputatus. 
Washingtonii, D. C. die 6 Maii, 1926. 


Imprimatur: 

+ MICHAEL J. CURLEY, 
Archiepiscopus Baltimorensis. 
Baltimorae, die 6 Maii, 1926. 


TABLE OF CONTENTS 


PIOUTCOMR oe tO se oe cla 5. re ate ork SNe tae Ct Raat ela Sains Uo ake kK eo oete ary 
WSOP TA DIV Val ye isisteis'oe'e » = 6's 06 a's oie Ww I A ieee hebben et eee Rea OS 
POL OWOOT OU re noee ful eictelotely + Oe ach ele eee als Gale Hal ate eters Shia bse aibee Sia ere ale 


Chapter I. Fundamental Ideas concerning Privilege in Ecclesiastical 


TEAL WAM ar sete Sioktetsee Weta a Oud Didtwis’ one: ss, wie eigle Coats SB olel tie 

1. Etymology, and early Use of the word ‘‘Privilege’’..... 

2. Ius singulare in Roman Law....... PP MESSI ORES Ma 

ELA Wiam Min tee stave vitieip die sales Givisihe se oe eae ore engi gree w ore'n 9 

4, Concept of Privilege in Ecclesiastical LAW ab o elas net bties.¢ 

5. Privilege in the Decree of Gratian, and in the Decretals 

BEART OUOT Ve cee cootshsiera le siais ie ap: bee A PL 8 SA PS 1 POE 

6. Various Definitions of Privilege.............. eh yy ths Ae: 

7. A proportionate Cause relative to a Privilege............ 

8. Writing not essential to a Privilege............. Re Ree 

9. Promulgation considered in respect of Privilege.......... 

10. Difference between Privilege and other Canonical Institutes 
Chapter II. Author, Subject, and Object of a Hoes Sends ste ole 
1. Author of BRE TIVUCOC rie oe ew siee heels © : ob ¢ in sta ge a's : 

2. Subject, and Object of a Privilege......... Ae ah Oe Se 

Chapter III. Division of Privileges........ SPR aete eM etee me sels bets A 
Chapter He Acquisition of Privileges......../.%.. Paistes ates we se eho 
1. Direct Concession of Privileges....... Siithe eie'e Wile a ate «tale 
PeeAANIMUNICOLION OL TE TIVIICLOS < tie cies plea oie =» o's'ete cjeles.« Age 
RPOREPLIBCOM .*. 5's 's'e 0 PRES yr Sir Buhl ap ee Se gis tire tinh aoe orate 

PE PESCTADCIOINS ale oid e'e vin|sidieln eieto e Share aig iat Oe Pia Reta Caled dele e phe 

BE POSUINPUION (sos seg ccc Rist e giptatace a's tele & Sige te ain ware emi aevers 

Chapter V. Interpretation of Privileges..........d.cecceeoes Rey 
Pomeren tmse Of 2 Privileges. . 26. s.'ss sce c ees Peale wigan SHAG? 
Chapter VIL Cessation of Privileges............ Rue cterelp ates eet eh 
iamevocation of Privileges. . <i... secs mes 0% satelite a cite as 

2. Renunciation of Privileges. . SUGEE odete) neat's ea eien staee (aerees aaah ate er cre 

3. Loss of Privileges by reason of the Grantor’s loss of Power 

4. Loss of Personal Privileges..........+00% die «'sioie-elayiebeie a's 

WeOse OL Oa PTIVICOOS... cule o kes se rcce cc crentacies ase 

6. Loss of Privileges by non-use, or contrary use of Privileges 

7. Loss of Privileges because of altered Circumstances, lapse 

of Time, and exhaustion of number of Cases........ 

BREA USE OLE TIVIIOZOS o. as coke ee ee anne ecee 6 «> ao einai e lee bie 

Ciapierey oti. Proot.of 8 Privileges... 2 iss e's wins ccecee nsecnans 


Cert ace Le OUIGLOA 2) Grace ara sie b spec ain.e o's a'e sic'd up dike a eele nee tee eaius'e 


SOURCES. 


Acta Apostolicae Sedis, Romae, 1909——. 

Acta Sanctae Sedis, Romae, 1865—1908. 

Acta et Decreta Concilii Vaticani, Romae, 1872. 
Bullarium Romanum, Augustae Taurinorum, 1860. 
Codex Iuris Canonici, Romae, 1919. 

Codex Theodosianus, Berolini, 1905. 


Collectanea S. C. de Propaganda Fide, 2 vol., Romae, 
1907. ; 


Corpus Juris Canonici, 2 vol., Lipsiae, 1922. 
Corpus Iuris Civilis, 3 vol., Berlin, 1895. 

Decreta S. C. Rituum, 6 vol., Romae, 1901. 

Decreta S. C. Tridentini, Taurini, 1913. 

Fontes luris Canonici, 3 vol., Romae, 1923—1925. 


Fonti del Diritto Romano, per cura di Pietro Cogliolo. 
2 ed., Torino, 1911. 


iv 


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Alphonsus, St., de Ligorio, Theologia Moralis, Augustae 
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Arregui, Antonius, S. I., Summarium Theologiae Moralis, 

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Augustine, Charles, O. S. B., A Commentary on the New 
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v 


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vi 


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vil 


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ix 


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FOREWORD. 


The Code of Canon Law groups the principles regulat- 
ing privileges in the canons comprising the fifth title of 
the first book. All privileges are to be governed according 
to these principles, no matter whether the privilege be 
granted by the law itself, or be conceded outside of the 
field of law. 


The purpose of this dissertation will be to examine 
the seventeen canons under the title De Privilegus. 


In accordance with the general theme of the entire 
first book of the Code, consideration will be restricted to 
principles which govern privileges. Hence, no single 
privilege will be subjected either to historical scrutiny, 
ior to a review of its canonical development. Beyond their 
obvious utility in exemplifying principles, the privileges 
of the Code will not be discussed. 


In general, the order of the Code will be followed. 
One exception to this order will be made in discussing 
the canon on ‘‘faculties.’’ Since these faculties are en- 
tirely praeter ws, it was deemed advisable to place the 
chapter on ‘‘faculties’’ after the chapters which consider 
all classes of privileges. 


Xi 





CHAPTER I 


FUNDAMENTAL IDEAS CONCERNING PRIVI- 
LEGES IN ECCLESIASTICAL LAW. 


In a treatise on privileges it is necessary to mention 
and explain all the various concepts which possess either 
a direct, or an indirect relation to the subject of privi- 
leges. The object of this first chapter will be to set down 
the fundamental ideas of ‘‘privilege’’, some of which will 
recur again and again thru the body of this dissertation. 


1. Etymology and early use of the word ‘‘ privilege’. 


The English word ‘‘privilege’’ is a translation of 
the Latin noun privilegium. The letter is derived from 
the adjective privus, and the noun lex. Privus means 
‘‘single,’’ or ‘‘individual’’: thus privus homo means an 
individual man.? 

When considering the use of the word ‘‘privilege,’’ 
a distinction must be made between ante-Augustan writ- 
ers, and post-Augustan writers. Near the beginning of 
the Christian era the usual concept of ‘‘privilege’’ 
changed completely. It still held the idea of something 
individual, but the object of a privilege was altered en- 
tirely. | 

In the time of Cicero, the word ‘‘privilege’’ had 

1 Harper’s Latin Dictionary, (New York, 1888), v. privilegium; Antoine, 
Theologia Moralis Universa, (Venetiis, 1783), tom. II, p. 85, ad 
ecaleem 1 records a double etymology of the word privilegium, 
(1) privans lege-eximens a lege, (2) lex privata-spectale aliquid 
concedens; ef. Cartegena, Ezxpositio Tttulorum Luris Canonici, 
(Lugduni, 1624), lib. V, tit. XX XIII, p. 459. 

2 Privos privasque antiqui dicebant pro singulis: ob quam causam et 
privata dicuntur quae uniuscuiusque sint, hinc et privilegium et 


privatus, Cogliolo, Manuale delle Fonts del Dirttto Romano, (Torino, 
1911), 2 ed., De verborum significatione, n. VIII. 


[1] 


2a Principles of Privilege According to the 
Code of Canon Law 


predominantly an odious meaning. It meant an ordi- 
nance made against a single person. Such an ordinance 
was not according to the customs of the Romans. Cicero 
writes: in privatos homines leges ferri noluerunt: id est 
enm privilegium. With the Romans a law was an ordi- 
mance of general interest. Such a departure, then, as an 
individual ordinance was abhorrent to Cicero. He adds 
pointedly: quo quid est iniustius? However such a proced- 
ure was not unknown. Cicero himself refers to a privi- 
lege in his fourth Paradox,* and his own fortunes were 
visited with a similar law. In defense iof his own prop- 
erty, Cicero eloquently remarks: Vetant leges sacratae, 
vetant XIT tabulae leges® privatis homunibus inrogari: rd 
est enim privilegium. Nemo unquam tulit; nihil est eru- 
delius, nihil permiciosius, nthil quod minus haec civita 

ferre possit.® 3 


During the time of Augustus, the word ‘‘privilege’’ 
was used in the sense of a favor, or a prerogative. It 
was no longer used in an odious sense. Seneca writes 
of privileges which were granted to parents.*?. He speaks 
of favors and calls them beneficia. This word expressed 
good will: wn beneficiis wcundissima sit tribuentis volum- 
tas.® | 


Roman Law took up this new meaning of ‘‘privi- 


i) 


De Legibus, lib. IIT, ec. 19; lib. ITT, c. 4, M. Tulii Ciceronis, recognovit 
C.F.W. Mueller, Scripta quae manserunt omnia, P. IV, v. II, 
(Lipsiae, 1905). 

4 Familiarissimus twus de te privilegium tulit. Paradoxa IV, o.c., p. IV, 

v. ITI, (Lipsiae, 1898). 

5 Privicloes leges ne irroganto; Tab. IX, n. 8, Cogliolo, o.e. 

Pro domo sua, n. 17; M. Tulii Orationes, recognovit Gulielmus Peter- 
son, (Oxonii, sine anno). ; 

Quaedam privilegia parentibus datae sunt; De Beneficiis, lib. Tibfe2a), 
(Lipsiae, 1900) L. Annaei Senecae opera quae supersunt, v. I, 
fase. II, edidit Carolus Hosius. 

8 De Beneficiis, o.c., lib. II, ¢. I. 


o 


~] 


Principles of Privilege According to the 3 
Code of Canon Law 


lege,’’ ° and altho concessions and favors were not always 
spoken of as privileges, yet one who enjoyed such a right 
was known as privilegiarius.” 


2. lus singulare in Roman Law. 


In Roman Law there existed an institution known 
as wus singulare. This was a law which had for its pur- 
pose some special utility beyond the common utility of 
all law." Thus one category of creditors was preferred 
to another,’* donations between husband and wife were 
invalid, ete. The jurist Paulus wrote: lus singulare 
est quod contra tenorem rationis propter aliquam utili- 
tatem auctoritate constituentium mtroductum est.* But 
it would be erroneous to say that utility was the sole 
standard of ws singulare, and it is better to say with 
Ferrini® that in the case of tus singulare the aspect of 
utility was more in evidence than usual. 

A privilege bears some similarity to the Roman ws 
singulare.° Both were given in view of individual per- 
sons, or groups, but while a privilege frequently re- 
mained a simple concession, ius singulare often repre- 
sented an advance in legislation and thus became incor- 
porated in succeeding general codifications of law.’’ The 
embodiment of many wra singularia gave a development 


9 Thus in the Theodosian Code: Etiam tstud adjungimus, ut domos etiam 
clementiae nostrae, quas vetusta et innumera ab huius oneris curatione 
privilegia vindicabant, par conditio et sollicitudo constringat, tta 
tamen, ut in ceteris quae vel inlustribus vel patrimonio nostro pracce- 
dentibus edictis beneficia fuerant adirtbuta, intemerata permaneant: 
XV, 3, 4. (Berolini, 1905), cf. also XIV, 2, 1. 

10 Ulpian, D. 14, 5, 3; ef. Calvinus, Magnum Lexicon Iuridicum, (Coloniae 
Allobrogum, 1759), verb. privilegiarius. 

11 Ferrini, Manuale di Pandette, (Milano, 1917), n. 9. 

12 DPD, 42, 3, 1. 

13 D, 24, 1, 1. 

VE ADS ene Ge 

15 Ferrini, o.c., 1.c. 

16 D’Annibale, Summula Theologiae Moralts, (Romae, 1908), v. I, n. 227, 
ad calcem 1, 

17 Ferrini, o.c., n, 10, 


4 Principles of Privilege According to the 
Code of Canon Law 


to law which really represented mighty strides in juris- 
prudence. 


3. Law. 


Since so many canonists have used the word ‘‘law’’ 
in their definition of a privilege, a few thoughts must be 
set down relative to what a law really is. Saint Thomas 
defined a law as ordinatio ratioms ad bonum commune 
ab eo qui communitatis curam habet promulgata. Sua- 

ez’? gave a somewhat similar definition: commune prae- 
ceptum iustum ac stabile sufficienter promulgata. 

The elements of a law are (a) general obligation, 
(b) proper matter, (c) competent authority, and (d) 
promulgation.” The first element necessarily excludes 
every ordinance which does not refer to all the subjects 
in a community, or society. The second characteristic 
demands a just regulation, and apt material. The third 
element restricts the issuance of a law to those who ac- 
tually enjoy legislative power, The power may be in 
temporal matters or in spirtiual. The last note of a law 
requires that the subject be made cognizant of the law. 
This does not mean that everyone must individually be 
acquainted with the details of the law. In many cases 
this would be impossible; it suffices to have the law made > 
public. 

An ecclesiastical law must fulfill the same require- 
ments as any other law. It could then be defined thus: 
ordiatio rationis ad bonum commune ab eo qui commu- 
nitatis ecclesiasticae curam habet promulgata.* Teclesi- 
astical law, however, differs in one important respect — 
from civil law: its history does not begin with custom. 
The law of the Church existed in earliest times as can 





18 1.2, qu. 90. a. 4. 
19 Suarez, Opera Omnia, (Parisiis, 1856), v. V, lib. I, ¢, 


12, n 
20 Herinex, Summa Theologica Scholastica et Moralis, antec 1680), 
tr. Il, disp. I, q. I, n. 1-5. 


21 Wernz, Ius Decretalium, (Prati, 1913), tom. I, n. 89. 


Principles of Privilege According to the 5 
Code of Canon Law 


be seen from the ordinances laid down by the Apostles.” 
Subsequent to these laws customs arose. Ancient civil 
law does not enjoy this priority. Roman Law found 
much of its source in customs, as did also Greek and bar- 
barian law.” 


4. The Concept of Privilege in Ecclesiastical Law. 


As has been observed, the etymology of the word 
‘*privilege’’ demands that a privilege be a provision made 
in regard to a single person. A moral person, or body 
with proper approbation can also be considered juridi- 
cally as a single person. Beyond this the idea of indi- 
viduality cannot be extended.** A provision in regard to 
either of these two divisions can be understood as a 
privilege. 

Now let the favorable idea of a privilege be consid- 
ered. Ecclesiastical law was founded at a time when 
the original, unfavorable meaning of the word ‘‘privi- 
lege’’ had been discarded, and the new, benevolent idea 
was in vogue.” This meaning has ever since remained 
to the total exclusion of the ante-Augustan signification.”® 
Hence a privilege would be a favorable provision in re- 
spect of a physical, or moral person. 

Then, were a comparison instituted between a privi- 
lege and the elements of a law, it will be seen that the 
purpose of a privilege is directly opposed to the purpose 


22 Wernz, 0.c., l.c. 

23 Massini, Interpretatio Gai et Iustiniani Instttutionum, (Cryptaefer- 
ratae, 1907), p. 12. 

24 Non-collegiate moral persons can also be the subject of privilege. 

25 Cicognani, Commentaritum ad Librum I Codicis, (Romae, 1925), p. 273. 

26 Privilege in civil law was also called ius singulare, beneficium, rescrip- 
tum, diploma Principale, constitutio personalis, favor, auxilium, 
gratia; cf. Calvinus, o.c., verb. privilegium; in ecclesiastical law, 
privilege was also called rescriptum, diploma, indultum, principale, 
favor, gratia, immunitas; cf. Reiffenstuel, Ius Canonicwm Universum, 
(Antwerpiae, 1743), lib. V, tit. XX XIII, n. 6: Glaire, Dictionnatre 
Universel des Sctences Ecclesiastiques, (Paris, 1868), adds loi favor- 
able, prerogative, avantage, droit particulier, verb. privilege. 


6 Principles of Privilege Accordimg to the 
Code of Canon Law 


of a law. In no direct way can a privilege as such be 
said to be ad bonum commune. Yet this is essential in a 
law. Lacking this element a privilege of itself cannot be 
a law. Add to this the idea of free acceptance, and use 
of a privilege on the part of the grantee. Free accept- 
ance, however, is not absolutely essential to the concept 
of a strict privilege because a privilege can actually be 
granted without the consent of the grantee.*? 

The two concepts of law and privilege thus diverge 
more and more. In fact only one important point seems 
to be common to both law and privilege, and this of 
necessity. This point is the source whence come both © 
privilege and law. The legislator is the author of law, 
explicit in legislation, tacit in custom, as he is also of 
privilege. After this common element is disposed of, 
perhaps nothing more remains under which both concepts 
might be grouped. : 

Still the idea of stability, or duration might be urged 
as a common element. Altho this could be admitted, the 
admission would not identify privilege and law in a 
generic way. Yet it is this stability which gives some 
appearance of a law to a privilege.*® 

The privileges enumerated in the Code are not all 
strict privileges. None of these privileges can be re- 
jected, but must be accepted together with the dignity, 
or state to honor which these privileges are conceded. 
Thus a Cardinal, or Bishop cannot reject his privileges 
once his dignity has been conferred upon him. In fact 
Prelates implicitly accept their privileges when they 
accept their dignity. Similarly, clerics cannot reject their 
clerical privileges, nor can Regulars, considered as indi- 
viduals, or as a community reject their privilege of ex- 
emption. This necessity of accepting the privileges con- 





27 Maroto, Institutiones Iuris Canonici, (Romae, 1921) 8 ed., v. I, n. 291. 
28 Cocchi, Commentarium in Codicem Iuris Canonicit, (Taurinorum Au- 
gustae, 1921), v. I, 113-4, 


Principles of Privilege According to the 7 
Code of Canon Law 


tained in the Code would not itself destroy the idea of a 
‘strict privilege, because these privileges are granted in 
view of the exalted position, or higher state in life 
obtained or chosen by the grantee. These privileges, 
therefore, are not conceded solely because of the grantee. 

Liberty in using, or not using the privileges granted 
‘by the Code will indicate whether or not such privileges 
are strict privileges. While a Cardinal, or Bishop can- 
not reject his privileges, yet he can neglect their use. 
Neither Prelate is obliged to bless rosaries whenever an 
occasion presents itself. Neither Prelate is obliged to 
celebrate mass on a portable altar. The use of these 
privileges depends upon the wishes of the grantee. Such 
privileges can be compared favorably with concessions 
found outside of the law. One practical difference can 
be noted. Legislators and judges are presumed to be 
acquainted with the grants made in law, but are pre- 
sumed to be unacquainted with the grants outside of the 
field of law. Therefore the latter grants would have to 
be proved in order to be sustained, while presumption 
favors the grantee who receives his privilege from the 
law itself. 

On the other hand, the privileges of clerics must be 
used whenever an occasion warrants. A cleric cannot 
forego privilegium canonis and submit to injury.*° In 
the same way ecclesiastical court cannot be neglected and 
civil court used in trials.** Similarly, an exempt religious 
cannot place himself under the jurisdiction of the Ordi- 
‘nary of the diocese where he may be residing. This same 


29 Cf. D’Annibale, o.c., v. I, n. 277 ad caleem (1); This author limits 
strict privileges to grants made outside of law. His definition of 
privilege is: beneficium principis extra corpus wris alicut concessum. 
After the Code, Maroto, v. I, n. 291, and Cocchi, v. I, n. 113-114 use 
the same distinction so that the Code would contain absolutely no 
privileges in the strict sense of the word. 

30 C, 15, X, de sententia excommunicationis, V, 39. 

31 Cf. can. 120, 1,2, for necessary permission to act in civil court: Wernz- 
Vidal, De Personis, (Romae, 1923), n. 77. 


8 Principles of Privilege According to the 
Code of Canon Law 


prohibition attaches to the entire exempt religious insti- 
tute. Hence, since clerical privileges, and the privilege 
of exemption can neither be rejected nor neglected, the 
beneficiaries of these privileges have practically no con- 
trol over their privileges. Consequently such privileges 
are called privilegia late sumpta. However it must be 
borne in mind that privilegiwm late sumptum is not there- 
by an improper privilege, or that the word ‘‘privilege’”’ 
is employed merely in an accommodated sense. A real 
concession is made, and the word ‘‘privilege’’ is properly 
employed, as the Code itself indicates.** But since little 
control, if any, of these privileges is left to the grantee, 
they can only be ealled late sumpta. 

In regard to privileges granted outside of the Code, 
the same characteristic, 2. e., freedom in using a privi- 
lege, will determine whether or not a privilege is stricto, 
or lato sensu. Privileges in particular law will be judged 
according to this norm. Concessions outside of both 
common and particular law will usually be strict privi- | 
leges. 

A paragraph concerning the negative aspect of a 
privilege will complete this discussion. Positive law does 
not state that special rights conceded by means of privi- 
leges are not to be used by non-privileged persons. Altho 
such a statement would clearly set off the distinct char- 
acteristic of a privilege (favor specialis), yet it is 
scarcely necessary to state categorically that special 
rights are not to be used unless specifically granted. The 
law is the general standard of rights as well as of obli- 
gations. Any right outside of law must, in some way, 
be the result of special concession. 

Completing the distinction between privileges strictly 
so called and privileges widely so called, it is necessary 
to state that unless the context demand otherwise, a 
strict privilege is meant in this dissertation. 





82 E.g., Can. 123, 618. 


Principles of Privilege According to the 9 
Code of Canon Law 


d. Privilege in the Decree of Gratian, and in the 
Decretals of Gregory IX. 


Gratian taught: Privilegia sunt leges privatorum, 
quast privatae leges. Nam privilegium inde dictum est, 
quod in privato feratur.® Altho Gratian understands 
privileges as laws, yet he could scarcely have meant a 
law in the strict sense of the word. In the very next 
distinction** Gratian gives the qualifications of a law. 
EHrit autem lex honesta, vusta, possibilis, secundum natu- 
ram, secundum consuetudinem patriae, loco temporique 
convemens, necessaria, utilis, manifesta quoque, ne ali- 
qud per obscuritatem inconveniens contimeat, NULLO 
PRIVATO COMMODO, SED PRO COMMUNI UTILITATE CIVIUM 
conscripTa. In both citations Gratian’s authority is Isi- 
dore.*® 

Glossa ** interprets the word leges to mean strict 
laws, but this contention is based on the use of this word 
as contained in a Decretal of Pope Innocent III.*’ 

After describing the contentions of two abbeys rel- 
ative to the appointment of an Abbot, Innocent III says 
that a privilege is a private law.** It is scarcely likely 
that Pope Innocent meant to define a privilege as a real 
law, because the case he has in mind only concerns the 
monks of the two abbeys in question, and in no wise ful- 
fills all the requirements of a law, common good, promul- 
gation, etc. Arguing from the concession granted by Pope 
Paschal, confirmed by Pope Callixtus I, Innocent III de- 
cides that the privilege is legitimate and must be hon- 
88 C, 3, D, III. 

84 C. 2, D. IV. 
85 For privilege: Htym. lib. V, c. 18, n. 1, MPL. v. 82, col. 202; for law: 

Etym. lib. II, ce. 10, n. 6, MPL v. 82, col. 131. 

36 Glossa is helpful in giving the use of the word privatt. Privati sunt: 

(a) non constituti in aliqua dignitate, (b) excepti a ture commun 

sive sit collegiwm, sive sit aliqua spectalis persona. 


37 C, 25, X, de verborum significatione, V, 40. 
38 Quum privilegium sit lex privata; c. 25, X, de verborum significatione, 


? 


10 Principles of Privilege According to the 
Code of Canon Law 


ored. Certainly the monks of Saint Silvan’s abbey, who 
acted in opposition to the privilege given to the other 
monastery, were obliged to live up to the terms of the 
privilege. But this obligation arises fundamentally from 
natural law: no one is allowed to infringe the rights of 
another. It is true that this can be called an obligation 
resulting from a privilege, but it is not enough to make 
a strict law of a privilege. 

In the case at hand the monks of Saint Bertin, who 
enjoyed the privilege of having one of their number 
elected Abbot of Saint Silvan’s abbey, were not obliged 
to use their privilege. But in fact it is their continued 
and tenacious use of their privilege (thru the election 
of seven Abbots) which makes their case so strong with 
Innocent III. The monks went so far as to require a 
certain Guarinus, a monk of Saint Silvan’s, to make his 
profession in the abbey of Saint Bertin, and there remain 
for a time before the Abbot would consent to his election 
as the head of the abbey of Saint Silvan.*® 


6. Various definitions of Privilege. 


An argument from strict juridical principles does 
not destroy the clause quum privilegium. sit lex privata.*® 
Suarez" for one held a privilege to be a strict law. Since 
Suarez is one of the principal adherents of this opinion, 
it would be well to outline his doctrine on the matter 
rather fully. Suarez*? says that every just law which 
does not impose a special and odious obligation is in a 
certain sense a privilege. One reason is because of its 
directive nature.*? Suarez then shows the double accepta- 





39 In a recent work Brys, De Dispensatione tn Iure Canonico, (Brugis, 
1925), claims that commentators on the Decretals did not draw a 
strict line of demarcation between privileges and dispensations. 
Some indeed identified the two concepts. p. 101, 168-9. 

40 C, 25, X, de verborum significatione, V, 40. 

41 Suarez, o.c., lib. VIII, c. 1, n. 2. 

42 Suarez, o.c., lib. VIII, pr. 

43 Illwminat, dirigit, et in officio continet, 1.c. 


Principles of Privilege According to the 11 
Code of Canon Law 


tion of the word privilegiwm:** the word means either 
the favor conceded, or the document in which the favor 
is contained. Next Suarez says that not every privilege 
iis a law, because some favors are not perpetual.* Stabil- 
ity is Suarez’s standard. If a favor is not permanent, 
but is given for a certain time, it is not a law. Con- 
- structing his definition philosophically, Suarez uses the 
word lex as the genus, and the word privata taken from 
Innocent III,*® as the species. The favorable aspect is 
taken from the object of the privilege. Completed, the 
definition reads: lex privata aliquid speciale concedens.** 

Suarez will not admit that the word privata destroys 
the idea of a strict law, but, instead, makes the word a 
characteristic by which a privilege is distinguished from 
other laws.** 

But Suarez is forced somewhat to recede from his 
position when he discusses the necessity of promulga- 
tion.*® Then he maintains that many concessions do not 
receive promulgation. Suarez is obliged to concede that 
natural law at least supplies the fundamental reason for 
the non-interference with a privilege. Suarez takes re- 
fuge in the fact that the privileged person must exhibit 
a document to prove his concession, should it be chal- 
lenged. Thus this simple form of proof supplies the 
notice which a community must have to respect a privi- 
legre. 

Suarez is incorrect in his classification of a privi- 
lege. Stripped of some of the essential elements of a real 
law, namely, direct obligation, common observance, and 
promulgation, the only notes which remain common to 
privilege and law are source and stability. Both law 





44 Suarez, o.o., lib. VIII, c. 1, n. 1. 

45 Suarez, 0.c., lc. 

46 ©, 25, X, de verborum stgnificatione, V, 40. 
raat Suarez, 6.0;; ib. VILI, ¢c..1):n.:3- 

48 Suarez, o.c., lc. 

49 Suarez, o.c., lib. VIII, c. 24, n. 7. 


12 Principles of Privilege According to the 
Code of Canon Law 


and privilege come from the same legislator, and both 
ean have equal permanence. But this is not sufficient to 
put the two canonical institutes in the same category. 

Cardinal Hostiensis™® was another canonist who con- 
sidered a privilege to be a law. He draws his support 
from Gratian and Innocent III. Consequently, it would 

be superfluous to repeat the remarks on the interpreta- 

tion of the sources. The same reasons for maintaining 
that neither Gratian, nor Innocent III had used the phrase 
lex privata in the strict sense also militate against the 
propriety of Hostiensis’ definition of privilege. 

Herinex™ gives a definition for privilege which is not 
better the Suarez’s definition. He writes: Privileguum 
est constitutio principis specialem favorem concedens. 
A privilege gives the right either to perform some action, 
or to omit it. ue 

An analysis of the elements of Herinex’s definition 
of privilege will reveal how unacceptable it is. Consti- 
tutio is usually a document which founds a general law. | 
Acecpted in this sense, Herinex’s definition falls into 
Suarez’s error, and it must be rejected, for a privilege 
is not a law since the latter must be issued for general 
observance. Besides, constitutio allows only for a privi- 
lege which is found in writing. This would not be suffi- 
ciently extensive as a privilege can also be obtained by 
custom and prescription.’ The word principis is mis- 
leading, for it does not seem to cover all competent Supe- 
riors. A better expression would have been auctoritatis 
competentis. In using the latter expression every Supe- 
rior is held within his own province, and the legitimate 
power of Superiors inferior to the Roman Pontiff is 
recognized. 





50 Hostiensis, Swmma Aurea, (Venetiis, 1570), lib. V, in tit. de privilegiis 
et excessibus privilegiatorum, n. 1. 

51 Herincx, o.c., tr. 3, disp. 4, q. 3, n. 53. 

52 Maroto, o.c., v. I, n. 238. 

53 Can. 63, $1. 


Principles of Privilege According to the 13 
Code of Canon Law 


Reiffenstuel’s definition of privilege is: Lex privata 
contra, vel praeter ius aliquid concedens.** Reiffenstuel 
admits there is no obligation in respect of the privileged 
person, but merely in regard to the community which 
must not interfere with the privilege. In explaining why 
there is no obligation in respect of the grantee, Reiffen- 
stuel says nemo beneficio sibi concesso uti cogitur. This 
statement is enough to weaken Reiffenstuel’s definition 
of privilege. If the principal beneficiary is under no 
obligation to use his privilege, the concession is anything 
but a strict law, for a law imposes a direct obligation on 
those for whom it is enacted. Concessio, or donatio would 
have been a better word in Reiffenstuel’s definition, and 
not the word lex, even if the last-named word is qualified 
by the adjective privata. 


Some modern authors, such as Wernz,”’ and Blat®® 
retain Suarez’s definition of privilege. Their explana- 
tion is practically the same, and it is founded similarly 
on the text of Innocent III.°7 A phrase approaching lex 
privata is used by Vermeersch.®® He defines a privilege 
thus: zus singulare qubusdam concessum. This defini- 
tion is not entirely acceptable. Granted that the noun 
ius is used properly to mean a right, or faculty, never- 
theless it stresses the object of a privilege rather than 
its formal element. An earlier and somewhat different 
definition of privilege was given by Grandclaude. Priv- 
alegium est ius singulare contra vel praeter tenorem wris 
communis, ob aliquam utilitatem a principe concessum. 
In his explanation of his definition, Grandclaude makes 


54 Reiffenstuel, o.c., lib. V, tit. XXXITI, n. 3. 

55 Wernz, o.c., v. I, n. 158. 

56 Blat, Commentarium in Textum Codicis Iurts Canonict, (Romae, 1921) 
A Pad ee et A 

57 C, 25, X, de verborum significatione, V, 40. 

58 Vermeersch-Creusen, Epitome Iuris Canonict, (Mechliniae-Romae, 1921), 
Vers. 128. 

59 Grandclaude, Ius Canonicum, (Parisiis, 1883), lib. V, tit. XX XITI, n. 1. 


14 Principles of Privilege According to the 
Code of Canon Law 


wus almost synonymous with lex. For this reason his 
definition is unacceptable. 

Passing from an account of authors who more or 
less stressed the idea of law in their definitions of privi- 
lege, there remain to be examined several definitions 
which indeed use the word lex, but explain it so that only 
an analogical resemblance exists between privilege and 
law. 

The Jesuit canonist, Schmalzgrueber, preserved the 
form of Suarez’s definition of privilege, but explained it 
in afar different fashion. A privilege is a private law, 
but only analogically, and improperly so called. With 
this explanation the phrase private law can remain in a 
definition of privilege since one of the effects of a privi- 
lege is non-interference with the use of a privilege. Altho 
this effect primarily arises from the natural law, as Her- 
inex admits,® yet it is often embodied in the concession 
itself so that no excuse may be left to the transgressor. 
Human ingenuity can devise various methods of inter- . 
fering with, or hampering the pacific use of a privilege. 
The result would be that the benevolent will of the legis- 
lator would be thwarted. That such interference oc- 
curred in the past, the following Decretal of Honorius IIT 
will show. 

The monks of Cluny could not be excommunicated by 
the Ordinaries of the dioceses in which the Cluniae mon- 
asteries were situated. Some of the officials, however, 
indirectly violated the rights of the monks in obliging 
them to suffer the effects of excommunication. Thus in 
preserving the letter of the monks’ privilege, for they 
did not formally pass sentence of excommunication, the 
officials nevertheless infringed on the rights of the monks. 
Hearing of this dissimulation, the Pope ordered the offi- 





60 Schmalzgrueber, Ius Eecclesiasticum, (Romae, 1845), lib. V, tit. 
XXXII, n. 2-3. 
61 Herincx, o.c., tr. 3, disp. 4, q. 4, n. 53. 


Primciples of Privilege According to the 15 
Code of Canon Law 


cials to cease their activities, and obey both the letter 
and the spirit of the monks’ privilege.” 

While the definition of Schmalzgrueber might reason- 
ably be accepted yet for purposes of clarity, it is not 
perfect. A definition should be clear and concise, leaving 
no room for misunderstanding. Consequently, whenever 
possible error may arise from the wording of a definition, 
it should be recast, and presented in another form. 


One of the latest canonists to write on privileges still 
retains the expression lex privata. But like Schmalz- 
erueber, Cicognani® explains his definition in such a way 
that the idea of a strict law is destroyed, leaving merely 
an analogical and improper meaning. 

Woywod™ also uses the expression ‘‘private law,”’ 
but deprecates the use of this expression because it can- 
not be upheld at least in the provisions granted to indi- 
vidual persons. 

Sanguineti gives a definition of privilege which 
seems to be acceptable. Privilegium est concessio per- 
manens alicuius iuris specialis a legitimo Superiore 
facta. In this definition the nature of privilege is cor- 
rectly described as a concession. Thus the beneficiary is 
not obliged to accept the right granted for a concession 
usually implies voluntary acceptance of the provision. 
This note of free acceptance is even acknowledged by 
those who claim that a privilege is a strict law.*° 

Custom and prescription are also sources of privi- 
lege. Hence it is necessary to understand Sanguineti’s 
concessio as including legal concession. 

“62 C. 20, X, de privilegiis et excessibus privilegiatorum, V, 33; cf. also 

Seite. ARV, Q. 2. 

63 Cicognani, 0.c., p. 273. 
64 Woywod, A practical Commentary on the Code of Canon Law, (New 

ors, 1925), v. I, n. 46. 


65 Sanguineti, Institutiones Iuris LEcclesiasticit Privati, (Romae, 1884), 


n. 137. 
66 Reiffenstuel, o.c., lib. V, tit. XX XIII, n. 3. 
67 Can. 63, § 1. 


16 Principles of Privilege According to the 
Code of Canon Law 


The idea of permanence as contained in a privilege 
is not essential to the nature of a privilege, and for this 
reason it could be omitted from the definition of privi- 
lege. 

The phrase alicuius iuris specialis is well used for 
a privilege grants a right which is otherwise unattain- 
able, either in itself or in its permanence. This idea of 
speciality is so necessary to a privilege that without it a 
privilege would be unintelligible. The common law gives 
certain rights. If a privilege did no more than this it 
would be practically useless. 

The necessary competence of Superiors is well ex- 
pressed in Sanguineti’s definition of privilege. This idea 
_will be developed in the next chapter. 

Cocchi® defines privilege in the same way as San- 
guineti. Before the Code, Makee® used practically the 
same definition. : 

In this dissertation Sanguineti’s definition of privi- 
lege will be adopted. However, the word permanens will 
be omitted since it does directly touch the essence of a 
privilege. With this omission the definition of privilege 
reads: Privilegium est concessio alicuius iris specialis 
a legitimo Superiore facta. 


7. A proportionate cause relative to a privilege. 


(a) For the validity of a privilege. The will of the 
legislator is the sole force upon which obedience to the 
law rests. Hence the obligation to obey the law can 
change in whatever way the legislator alters his will. A 
proportionate cause is not necessary in order that a legis- 
lator may change his will, and consequently a proportion- 
ate cause is not necessary for the concession of a privi- 
lege. Schmalzgrueber™ classes a privilege as a kind of 





68 Cocchi, o.c., v. I, n. 114. 
69 Makee, Institutiones Iuris Ecclesiastici, (Parisiis, 1897). _ 
70 Schmalzgrueber, o.c., lib. V, tit. XX XIII, n. 17. 


Principles of Privilege According to the 17 
Code of Canon Law 


donation. But a donation can be made without cause, 
and hence a privilege. Reiffenstuel” says a legislator 
can remove a law ex toto, and in the same way ex parte, 
as he does ina privilege. Pirhing’? adds no more but uses 
the argument from the will of the legislator. 

In granting indulgences a proportionate cause is 
_always necessary for the validity of the indulgence.”? In 
a concession of this kind the Holy Father dispenses the 
merits of Christ. The Pope is not the master of these 
merits, and therefore must always have a reasonable 
cause to grant an indulgence. 


(b) For the liceity of a privilege. A word will suf- 
fice to explain the necessity of a proportionate cause for 
the liceity of a privilege. Justice must rule in a society, 
and consequently everything which would savor of ca- 
price must be avoided. Without a proportionate cause 
a privilege granted contrary to the law would injure 
justice. A privilege granted beyond the law without a 
reasonable cause would render the legislator guilty of 
undue favoritism. 

The legislator, or Superior must clearly intend the 
particular good of the grantee. But as this redounds 
to the common good he must also consider this aspect. 
Various reasons might be suggested, é. g., desire to fos- 
ter religion, utility, rewarding special service, ete.” 


8. Writing not essential to a privilege. 


Is it necessary for validity that a privilege be con- 
ferred in writing? The question is restricted to those 
privileges which have their origin in the direct conces- 
sion of the legislator. Proper proof of a privilege does 
71 Reiffenstuel, o.c., lib. V, tit. XX XIII, 

72 Pirhing, Ius Canonicum, (Dillingae, (674), ED, V, tit. XX XIII, n. 12. 
73 Aertnys-Damen, Theologia Moralis, (Buscoduci, 1919) Uk a Lisi. 1113. 


74 Herincx, 0.¢., tr. 3, disp. 4, q. 4, n. 62, 
40 Clog tls Ge ti Giese Oe RRL. 4, 


18 Principles of Privilege According to the 
Code of Canon Law 


not enter into the question. Only the essential influence 
of writing is considered. 

Suarez” says that writing does not enter the sub- 
stance of a privilege. He advances two reasons: first, 
there is no positive law which requires a document; sec- 
ond, because of the nature of the case the will of the 
legislator suffices. Suarez’s second reason, is the proper 
juridical explanation for the non-necessity of a docu- 
ment. 


Reiffenstuel,“” Schmalzgrueber,” and Pirhing” make 
very light of the question of writing relative to the valid- 
ity of a privilege. All three agree that the will of the 
legislator is sufficient. 


Opposed to this argument are two texts of Corpus 
Turis which apparently suggest the necessity of writing 
relative to the validity of a privilege. | 

Innocent IV wrote: Postquam semel omnes provin: 
ciae suae dioceses visitaverint, licitum sit ei postea, prius 
tamen suffraganeorum suorum requisito consilio, et ipsius 
ideffinitione super hoc habita coram eis, (quae in scripto 
esse volumus, ut possint alus esse nota,)********* onpor- 
tunum.°° Alexander III wrote to the Bishop of Amiens: 
Porro, quamvis Templaru et Hospitalarit multa sint liber- 
tatis praerogativa donati, non dubitamus, quin aliam 
libertatem habeat in locis, in quibus, antequam pervents- 
set ad eos, fuerant habitatores quod totum ex inspectione 
privilegiorum suorum plenius advertere potes, et secun- 
dum quod inveneris, ita observes. Sic enim eos volunwus 
priwvilegiorum servare tenorem, quod eorum meta trans- 
gredi minime videantur.* 


76 Suarez, o.c., lib. VIII, ¢. 2, n. 2. 

77 Reiffenstuel, o.c., lib. V, tit. XXXIII, n. 28. 

78 Schmalzgrueber, o.c., lib. V, tit. XX XIII, n. 14. 

79 Pirhing, o.c., lib. V, tit. XXXIII, n. 4. 

80 C. 1, de censibus, exactionibus, et procurationibus, ITI, 20 in VI. 
81 C. 7, X, de privilegiis et excessibus privilegiatorum, Vi aaa. 


Principles of Privilege According to the 19 
Code of Canon Law 


Suarez takes up these texts and shows that the ques- 
tion agitated was concerning the proof of the privilege. 
Very properly Suarez says that it is not permitted to 
infer that writing is necessary for the substance of a 
privilege. The two concepts are plainly different and 
from different things an inference has no place. At most 
Suarez admits a necessity non simpliciter sed ad melius 
esse. Prescription of a Superior, however, may make 
a document necessary in particular cases. 


9. Must a Privilege be promulgated? 


Promulgation is the publication of a law by the com- 
petent authority.®* Its purpose is to induce knowledge 
of a law and engender an obligation in respect to its 
observance. Promulgation differs from divulgation: the 
latter is diffusion of knowledge concerning the law. In 
all law promulgation is necessary. This necessity is 
founded upon the very idea of a law which is supposed to 
be a rule, or norm of human acts. Hence this rule must 
be known, or at least published in order to obtain its pur- 
pose.* 

With this in mind, privileges in the wide sense, e. g., 
clerical privileges, require promulgation. These privi- 
leges are real laws. Consequently they follow the neces- 
sity of laws. Now such laws contain a concession either 
as its substance, or as an accessory. Jn the first case, 
the privilege must be promulgated, not because it is privi- 
lege, but because it is a law. In the second case, the 
accessory follows the principal item. Since the latter is 
promulgated, the accessory is promulgated with 1t.*° 

On the other hand, it is easy to see that canonical 
promulgation has no place in privileges strictly so called. 


82 Suarez, o.c., lib. VIII, ¢. 2, n. 3. 

83 Wernz, o.c., v. I, n. 100. 

84 C. 3, D. IV; Aertnys-Damen, o.c., v. I, n, 144; Blat, o.c., v. I, n. 64. 
85 Suarez, o.c., lib, VIII, c. 14, n. 6-7. 


20 Principles of Privilege Accordiwg to the 
Code of Canon Law 


Yet ordinarily some modification is necessary, both in 
regard to the grantee himself, and in regard to others 
who must respect the use of the privilege. 

The notice which should come to the grantee can 
take any form whatsoever. But absolute validity does 
not demand this notice. The legislator ean, without any 
notice, or acceptance on the part of the grantee, concede 
him a privilege. The laws themselves were made by the 
legislator, or his predecessors and he has entire control 
over them. Yet strict privileges will usually contain 
the condition si privilegium sibt concessum acceptet.*® 
Proper government demands that favors be accepted and 
in order to be accepted they must first be known. 

Notification of a privilege to interested parties who 
must respect the legitimate use of the concession can 
take place at any time at all. No solemn promulgation 
is necessary. Practically speaking, this notification will 
become the proof of a privilege, and it will be considered 
in the chapter dealing with the proof of a privilege. 


10. Difference between Privileges and other 
Canonical Institutes. 


A. The differences between a law and a privilege 
have been noticed thruout this chapter. But in order to 


have these differences in one place, they will be repeated 
here.*? 


A privilege and a law differ in the following manner: 
(a) a law is made for a community; a privilege is granted 
to individual persons, or to classes of persons: (b) a 


86 Schmalzgrueber, o.c., lib. V, tit. XX XIII, n. 24; Can. 37 proposes the 
doctrine to be held concerning the validity of rescripts before ac- 
ceptance; Kescriptum impetrari potest pro alio etiam praeter eius 
assensum ; et licet ipse possit gratia per rescriptwm concessa non uté, 
rescriptum tamen valet ante etus acceptationem, nisi aliud ex apposi- 
tis clausulis appar eat. 

87 Herincx, 0.c., tr. 3, disp. 4, q. 4, n. 53; Grandclaude, o.¢., lib. V, tit. 
XXXIII, n. 1; Humphrey, Conscience and Law, (London, 1896), 
p. 163; Maroto, o.c., v. I, n. 292; Cocchi, 0.c., v. I, n. 114 


Principles of Privilege According to the 21 
Code of Canon Law 


law of its nature is perpetual; a privilege is not always 
perpetual: (c) a law must be promulgated; a privilege 
need not be promulgated: (d) a law consults the common 
good; a privilege consults the particular good; (e) a law 
thas binding force; a privilege ordinarily has no binding 
force: (f) a law may deal also with penalties; a privilege 
considers only favors. 


B. A dispensation is a relaxation of the law in a 
particular case.*® A dispensation differs from a privi- 
lege in the following manner:*® (a) a dispensation is 
always against the law; a privilege may also be outside 
of the law; (b) a dispensation is frequently granted for 
a single act; a privilege always implies a number of acts 
even when 4 is given ad tempus; (c) a dispensation often 
removes an obstacle which would hinder an act accord- 
ing to law, as in the case of a dispensation from an irregu- 
larity; a privilege permits a person to act contrary to 
the law, or beyond it; (d) a dispensation concerns a 
fact; a privilege is a norm of action. 

C. A rescript is a written answer to a petition. A 
rescript differs from a privilege in several ways: (a) a 
rescript is the document itself; a privilege is the favor 
contained in the document; (b) a rescript contains the 
interpretation of a law, or a dispensation, or a favor; a 
privilege is limited to a favor; (c) in general, a reseript 
refers to the form of a concession; a privilege is the 
concession itself. 

"88 Can. 80. Dispensatio, seu legis in casu speciali relaxatio, concedt potest 


a conditore legis, ab eius successore vel Superiore, nec non ab illo cut 
tidem facultatem dispensandt concesserint. 

89 Herinex, o.c., l.c., n. 54; Sanchez, De Sancto Matrimonio Sacramento, 
(Antwerpiae, 1626), lib. VIII, disp. I, n. 1; Zallinger, Institutiones 
Turis Ecclesiastici, (Romae, 1832), lib. V, tit. XXXITI, § 263; 
Genicot, Institutiones Theologiae Moralis, (Bruxellis, 1922), 9 et 
10 ed., v. I, n. 144; Humphrey, o.c., p. 164; Sanguineti, o.c., p. 72; 
Bargilliat, Praelectiones Iwris Canonici, (Parisiis, 1918), v. I, n. 100. 

90 Palao, Opus Morale, (Lugduni, 1682), tr. III, disp. IV, p. I, n. 5; 
Grandclaude, o.c., lib. V, tit. XX XIII, n. 1; Maroto, o.c., v. I, n. 292; 
Cocchi, o.c., v. I, n. 114, 


22 Principles of Prwilege According to the 
Code of Canon Law 


D. Gratia, or beneficium principis differs from a 
privilege in several ways:* (a) every privilege is gratia 
in one form or another; but not every gratia is a privi- 
lege: (b) gratia is a concession in itself, e. g., benefice, or 
office; a privilege is a right to perform some action, or 
to omit performing some action: (c¢) gratia is a favor 
granted beyond the law; a privilege may also be con- 
trary to the law. 

91 Palao, o.c., le., Devoti, Instituttones Canonicae, (Romae, 1825), v. I, 
e. III, § 36; Tamburini, Opera Omnia, (Venetiis, 1702), v. II, p. 317; 


St. Alphonsus, Theologia Moralis, (Augustae Taurinorum, 1879), lib. 
I, app. IT, c. I,-n. 1; Mareto, 0.c.,'l.c.3; Cocchi; 0.¢,; ‘Le; 


CHAPTER II 


AUTHOR, SUBJECT, AND OBJECT OF A 
PRIVILEGE. 


As the successor of Saint Peter, the Pope possesses 
the plenitude of power in all ecclesiastical matters... The 
Bishops succeed the College of Apostles. The personal 
prerogatives of the Apostles were not communicated to 
the Bishops. Thus the succession of the Bishops is per- 
fect only when they act in unison as, for instance, in 
ecumenical councils. Nevertheless the power of the keys 
(potestas clavium), as the power derived from the 
Apostles is called, resides in both Pope and Bishops; 
in the former as pastor with universal jurisdiction,? and 
in the latter as pastors with particular jurisdiction.‘ 
Zallinger expresses the idea well: Claves a Christo datae 
sunt uni, et datae sunt unitatr.® 

The Pope and Bishops are legislators with the power 
of binding in conscience.® Since they are the founders 
of their law, it follows that they can exempt from it.’ 


1 For dogmatic proof cf. Conc. Vat., Const. (Pastor Aeternus), ¢c. 3; Bellar- 
minus, Opera Omnia, (Neapoli, 1872), v. I, lib. IV, c. XII-XVIII; 
Pesch, Praelectiones Dogmaticae, (Friburgi Brisgoviae, 1924), v. I, 
n. 464, 477-503. Cf. also Bacchinius, Dissertatio de Ecclesiasticae 
Hierarchiae Originibus, (Mutinae, 1703), pars I, c. III, n. 4, 25; 
Nannetti, Brevi Nozions di Diritto Publico Ecclestastico, (Bologna, 
1840), v. I, pars II, § LVII, LIX. 

2 For dogmatic proof cf. Conc. Tridentinum, sess. XXIII, de ordine, 
ce. 4, can. 8; Pesch, o.c., v. I, n. 433, 441; Cf. also Bargilliat, 
Praelectiones Iuris Canonici, (Parisiis, 1918), v. I, n. 587. 

John c. 21, 15-17. 

Bargilliat, o.c., v. I, n. 594. 

Zallinger, Institutiones Iuris Naturalis et Eccl. Publici, (Romae, 1823), 
lib. V, CCCLIX. 

6 Cardenas, Crisis Theologica, (Venetiis, 1700), disp. XXII, ec. 2-5; 

Bouquillon, Theologia Moralis Fundamentalis, (Brugis, 1890), n. 97. 

7 Vecchiotti, Institutiones Canonicae, (Taurini, 1867), lib. II, c. II, 

14, 20. 


AP w 


[ 23 ] 


24. Principles of Privilege According to the 
Code of Canon Law 


Hence, the power to grant privileges, at least those con- 
trary to the law, resides in the legislators.2 Kvidently 
the utility of a strictly ecclesiastical law is in some way 
subject to circumstances. These circumstances may vary, 
and thus a complete revocation, or abrogation, would be 
necessary. In the same way, an individual good may be 
served without serious injury to the common good. This 
would give rise to either a dispensation, or to a privilege 
eontrary to the law. If a legislator can abrogate a law, 
a fortiore, he can grant individual exemptions, or privi- 
leges. 


1. Authors of Privilege. 


THe Porn. In ecclesiastical matters the principal 
legislator is the Pope. His power is not subject to 
human limitations.® His jurisdiction is universal.?® Hos- 
tiensis'! and Suarez’? paraphrase the words of Innocent 
III thus: Privilegium Ponttficis esse generale et divinum, 
ab wlo autem manasse omnia canonca mstituta.* Both - 
these writers interpret the word privilegiwm in this cita- 
tion to mean supreme authority, but Suarez adds that 
this refers to spiritual jurisdiction. Yet besides this 
power in strictly spiritual matters, the Pope can grant a 
mixed privilege in two ways: first, in regard to tem- 
poral things which indirectly become spiritual, and, sec- 
ond, in purely temporal things with a view to a spiritual 


8 Ballerini-Palmieri, Opus Theologicum Morale, (Prati, 1889), v. I, 
n. 388, Y 

® The Pope cannot grant a dispensation, or a privilege in matters of 
divine law. Thus the Pope cannot dispense from the impediment of . 
‘‘ligamen.’’ Cf. Aertnys-Damen, Theologia Moralis, (Buscoduci, 
1919), v. Il, mn. 772; Cappello, De Sacramentis, (Taurinorum 
Augustae, 1923), v. III, n. 224. 

10 Can. 218; Brys, o.c., p. 77. 

11 Hostiensis, 0.¢., lib. V, Le. 

12 Suarez, o.c., lib. VIII, c. 8, n. 7. 

13 Quum ex illo generali privilegio, quod beato Petro et per eum ecclestae 
Romanae Dominus noster indulsit, canonica postmodwm manaverint 
instituta, ******** de iure pertineant. ©. 1, X, de translatione 
Episcopt, I, 7. 


Principles of Privilege According to the 25 
Code of Canon Law 


purpose. Thus tithes as well as legitimation can become 
the object of a privilege.** 

The Pope cannot grant a privilege when it would be 
contrary to his own dignity. However, he can concede 
favors where his dignity is not infringed: e. g., giving 
others the right to fill benefices which otherwise would 
| belong to him. 

The Pope can grant privileges beyond the law pro- 
vided he has dominion over the object of the privilege. 

Altho the power to grant privileges resides in the 
Pope, it is not necessary for him to exercise this power 
personally. This power can be delegated. In fact, the 
Congregations of the Roman Curia are the usual chan- 
nels thru which the Pope concedes his favors.’® 


BisHors. Besides the Pope, Bishops enjoy ordinary 
power to make laws.‘*7 Their jurisdiction, however, is 
confined to the territory which has been assigned to their 
care.’® Bishops, therefore, cannot grant privileges which 
are contrary to the common law of the Church.’® This 
power, however, may be enjoyed thru delegation. Nor 
can Bishops grant privileges contrary to the laws of a 
provincial, or plenary council. In these councils the indi- 
vidual Bishop is only one of the legislators,” and conse- 
quently he has not entire control of the law. In common 
law the Code recognizes the power of dispensation”? but 
postulates a just cause without which the dispensation 
would be invalid. In particular law the Code concedes 
the power of dispensation, but it does not concede the 
power of granting privileges.” 





14 Suarez, o.c., L.c. 
15 Suarez, o.c., lib. VIII, c. 8, n. 8. 
16 Can. 7, 247-258. 
17 Can. 329, §1; Suarez, o.c., lib. VIII, c. 8, n. 9. 
18 Demeuron, L’Eglise, (Paris, 1914), p. 76, 123. 
1D) Wernd,0.c., Vv. 1,0: 159, 13. Cocehi, o.¢., v. I, n.,116. 
_ 20 $.C.8. Off., Sept. 10, 1896, Coll. n. 1952, 
21 Can. 81, 84, 
22 Can, 291, $2, 


26 Principles of Privilege According to the 
Code of Canon Law 


Contrary to his own laws, a Bishop enjoys the power 
of granting a privilege. In these laws the Bishop is the 
sole legislator," and has entire control over the laws.** 

Outside the field of his own law, a Bishop can grant 
a privilege provided the object of the privilege is not 
already forbidden in some way in common law, and pro- 
vided the Bishop has dominion over the object of the 
privilege. Therefore, Bishops cannot grant habitual 
faculties since they themselves do not enjoy these facul- 
ties.*° 


Vicars, AND Prerects Apostotic. Ordinary power is 
also enjoyed by Vicars and Prefects Apostolic.*® Their 
power to grant privileges is the same as that of the 
Bishops. 


Apostotic ADMINISTRATORS PERMANENTER CONSTITUTI. 
According to the Code,”’ the power of the permanently 
assigned Apostolic Administrators is the same as the 
power of the Bishops. Hence their competence in the - 
field of privilege is similar to the power of the Bishops. 


Appots AND PreLATES NULLIUS. Abbots, and Pre- 
lates nullius also possess ordinary jurisdiction.** Hence 
they, too, are competent to grant privileges contrary to 
their own laws. But they cannot concede privileges con- 
trary to the laws of the provincial, or plenary council 
in which they must take part.” 

Retiaious SuPERIORS AND CHapters. By disposition 


of law,®° religious Superiors and Chapters in exempt 
clerical institutes have the power of jurisdiction. Since 





23 Can. 362. 

24 Craisson, Manuale totius Iuris Canonici, (Pictavii, 1875), 4 ed., v. I, 
Thee G.s 

25 Wernz, o.c., v. I, n. 159, ad caleem 25. 

28 Can. 294, §1 

27 Can. 315, $1. 

28 Can. 323, $1. 

29 Can. 285, 291, § 2. 

30 Can. 501, $1. 


Principles of Privilege According to the 21 
Code of Canon Law 


both the religious Superiors and the Chapters are legis- 
lators, they can concede privileges contrary to their laws 
unless forbidden by their constitutions. 

In addition to their ordinary power of granting privi- 
lees in the matters of their own laws, Ordinaries may 
concede privileges by reason of delegation, or by reason 
‘of vicarious power. Thus Bishops, Abbots, or Prelates 
mullius, Vicars, and Prefects Apostolic, and major Supe- 
riors of exempt clerical religious enjoy the power of 
declaring an altar privileged.** ; 

Briefly, the power of Superiors to grant privileges 
can be gathered from these simple rules: (a) the Pope 
is competent in all laws, general or particular, no matter 
whether the laws are made by himself, or by an ecu- 
menical council, or by a predecessor, or by an inferior 
legislator; (b) a Bishop, or a Prelate with ordinary juris- 
diction is competent merely in the laws made by himself, 
or by his predecessor;*” (c) Privileges beyond the law 
can be granted by Superiors provided they have domin- 
ion over the object of the privilege. All Prelates inferior 
to the Pope cannot grant a privilege beyond the law 
should the object of the privilege be forbidden in some 
way in common law. 


2. Subject, and Object of a Privilege. 


Supsect oF a Privitecr. The subject of a privilege 
contrary to the law, must be one who is first under obe- 
dience to the law itself.*? Since this kind of a privilege 
exempts from the obligation arising from the law, it is 
necessary that an obligation should first exist else there 
can be no exemption from it.** Privileges beyond the 





31 Can. 916. 

82 Bargilliat, o.c., v. I, n. 102; Ayrinhac, General Legislation in the New 
Code of Canon Law, (New York, 1923), n. 157. 

33 Hostiensis, 0.c., de privilegiis et excessibus privilegiatorum, n. 7. 

34 Cocchi, o.c., v. I, n. 116; Maroto, Institutiones Iuris Canonici, 3 ed., 
(Romae, 1921), v. I, n. 296. 


28 Principles of Privilege According to the 
Code of Canon Law 


law, however, can be conceded to non-subjects of the 
law.*> But the matter of the privilege beyond the law, 
even if it is conceded to a non-subject of the law, must 
be included in matter over which the legislator has con- 
trol, and concerning which he can force respect for the 
privilege. Jurisdiction is not necessary in conceding 
privileges beyond the law.*® 
Oxssect oF A Privitecr. A privilege should be just, 
reasonable, and honest.*’ Anything, then, which fulfills 
these three requisites, can become the object of a privi- 
lege. Primarily this is true of privileges contrary to 
the law. Besides, the object of a privilege must contain 
a special favor.*® Lastly, the concession should usually 
be permanent in accordance with the principle decet con- 
cessum a principe beneficium esse mansurum.*® 
35 Makee, o.c., v. I, n. 319. 
36 Wernz, o.c., v. I, n. 159, 2. 
87 Suarez, o.c., lib. VIII, c. 9, n. 1. 
88 C. 25, X, de verborum significatione, V, 40, nec esset privata (lea) 
nist aliquid specialiter indulgeret. . 


39 R.J. 16 in VI; Can. 70. Privilegiwm, nisi aliud constet, censendum est 
perpetuum. 


CHAPTER III 
DIVISION OF PRIVILEGES. 


Before entering upon the various divisions of privi- 
eges as found in commentaries published after the pro- 
mulgation of the Code,’ it will be interesting to see how, 
in a few bold strokes, one author grouped all privileges. 
The Jesuit Tamburini, who wrote more than two cen- 
turies ago, prefixed this division of privileges to his 
commentary on the Bulla Cruciatae. 

Privileges, says Tamburini, are personal, real, or 
mixed.? Mixed privileges accrue to individual persons 
iby reason of age or condition. Real privileges are con- 
nected with places or certain kinds of actions. Personal 
privileges, however, are conceded to individual persons, 
either because of their own merit, or because they hap- 
pen to be members of a privileged community. The 
last-named subdivision is called a corporal privilege. It 
ean be further subdivided in privileges which all the 
members, as individual persons, can enjoy, and privileges 
which are enjoyed only when the community acts as a 
unit. 

This scheme of division proposed by Tamburini, is 
useful enough to obtain a general view of the several 
classifications of privileges, but its utility scarcely goes 
beyond generalities. Both strict and non-strict privileges 
ean be fitted into the parts of the entire scheme. While 


1 Maroto, Institutiones Iuris Canonict, (Romae, 1921) 3rd edition, v. I, 
n. 293; Vermeersch-Creusen, o.c., v. I, n. 129; Blat, Commentarium 
in textum Codicis Iuris Canonici, (Romae, 1921), v. I, n. 133; 
Augustine, 4 Commentary on the New Code of Canon Law, (St. 
Louis, 1921) 4th edition, v. I, p. 153; Ayrinhac, General Legislation 
in the New Code of Canon Law, (New York, 1923) n. 115. 

_2 Tamburini, Opera Omnia, (Venetiis, 1702), v. II, p. 317. 


[29 ] 


30 Principles of Privilege According to the 
Code of Canon Law 


this same objection is valid, in a certain sense, against 
the divisions proposed by modern authors, yet it loses 
much of its force from the clear line of demarcation 
between those privileges which are particular concessions, 
and the privileges which are properly speaking laws con- 
taining a favor. Once this necessary distinction is made, 
and properly understood, no difficulty will arise concern- 
ing the nature, interpretation, and use of the privileges 
found in the various divisions. 


Divisions or Priviteces. 1. The first division of 
privileges is sought in the souree of the concession. 
According to this division, privileges strictly so-called 
are concessions embodying afavor. In an efficient sense, 
it is the provision itself which is called a privilege, but 
in a subjective sense, the privilege is the favor con- 
tained in the grant. These privileges are not laws, altho, 
by analogy, they are frequently described as favorable 
laws... On the other hand, privileges widely so-called 
are real laws. They too, in an efficient sense, are the 
laws themselves, while in a subjective sense, the privi- 
leges are the favors contained in the laws. Thus in 
the new Code are enumerated the privileges of clerics,® 
of religious,® and of novices.’ 

Besides these widely so-called privileges of the new 
Code, such privileges can also exist in particular law. 
An example of such a privilege would be a particular 
form of election, different from the method described in 
the Code.® Privileges coming under this subdivision 
must be carefully distinguished from strict privileges 


3 E. g., Wernz, o.c., v. I, n. 158, IT; Maroto, o.c., v. I, n. 291; Blat, 
O.0s,) Week. Tks 129; Augustine, 0.0., Veale parkas Ayrinhae, 0.08 2, 
154-155. 

4 Maroto, o.c., v. I, n. 293. 

5 Can. 119-122. 

6 Can. 615. 

7 Can. 567, § 1. 

8 Can. 161-178, 


Principles of Privilege According to the 31 
Code of Canon Law 


since the latter likewise are outside the field of common 
law. 

Another point must be emphasized here. It is nec- 
essary to keep in mind the notions of the foregoing divi- 
sion because the mere classification of a privilege will 
not always reveal whether or not it is a strict privilege ; 
the favor may, perhaps, merely emanate from a favor. 
able common, or particular law. 

2. Privileges are divided into privileges contrary 
to the law, (contra ws) and privileges beyond the law 
{praeter wus). The first class argues an exemption from 
the common, or particular law. As observed above,? the 
concession of such a privilege postulates the power of 
jurisdiction. This jurisdictional power must be univer- 
sal, or regional, according to the scope of the law con- 
trary to which the privilege is granted. Therefore the 
Pope is competent in all ecclesiastical law; but a Bishop’s 
competence is limited to his own laws. A privilege be- 
yond the law is a mere favor which does not injure a 
law. All that is required to grant such a privilege is 
dominion, or at least, as in the case of indulgences, the 
power of dispensation.? Privilegia secundum ius are 
not proper privileges because no precise concession is 
made.” | 

3. Privileges can be personal (personale), or real 
(reale). A personal privilege is conceded directly in 
favor of a person. A real privilege adheres to some 
dignity, place, or duty. 

Personal privileges are subdivided into individually 
(singulariter) personal, commonly (communiter) per- 
sonal, and corporal (corporale) privileges.’ An indt- 


9 Cf. p. 28. 

10 The Moly Father is the dispenser, not the master, of the treasury of 
the merits of Christ existing in the Church. Aertnys-Damen, 
Theologia Moralis, (Buscoduci, 1920), v. II, n. 1113. 

11 Wernz, o.c., v. I, n. 158, ad calcem 12. 

12 Maroto, o.c., v. I, n. 293. 


32 Principles of Privilege According to the 
Code of Canon Law 


vidually personal privilege is one which is granted to a 
physical person, entirely because of his own merits. The 
privilege of a portable altar in favor of a priest would 
be such a privilege. A commonly personal privilege is 
one granted to physical person because he belongs to a 
certain state, or possesses a certain dignity. Such are 
the privileges of Cardinals,’* Bishops,’* patrons,” ete. 
A corporal privilege is one conceded to a moral person. 
All the members of this moral person usually enjoy the 
privilege but only by reason of their association with the 
moral person.’® 

Real privileges are likewise subdivided."* Real privi- 
leges are called local, (locale) if the privilege is granted 
to a place: muneral (munus, munerale), if granted to a 
dignity, or office: and properly real (res, reale), if granted 
to tangible things. ‘This last-named class will inelude 
the real privileges not distinctly local, or muneral. All 
real privileges continue even if the physical beneficiary 
is not at hand to enjoy them. | 


There are several ways to determine whether a priv:- 
lege is personal or real. First, the wording of the grant 
itself will very frequently decide the issue. The object 
of the privilege may also aid in dispelling a doubt. 
Similarly, the character of the person who receives the 
grant may help to solve a doubt. But, if, after using 


13 Can. 239. 

14 Can. 349. 

15 Can. 1455. 

i6 It is important to know whether a privilege is individually or com- 
monly personal, or corporal. The first ceases with the death of the 
grantee (Can. 74). The second likewise, as far as the immediate 
beneficiary is concerned, ceases with the beneficiary, but the privi- 
leges themselves continue in the dignity, or office. A corporal 
privilege continues for another hundred years after the death of 
the immediate physical beneficiaries. This, of course, supposes that 
the corporal privileges were not granted for a specified time, and 
that the moral person continues to exist according to the provision 
of canon 102. 

17 De M eester, Compendium Iuris Canonici et Iuris Canonico-Civilis, 
(Brugis, 1921), n. 305; Raus, Institutiones Canonicae, (Lugduni- 
Parisiis, 1923), n. 40, IL. 


Principles of Privilege According to the 33 
Code of Canon Law 


these criterions, a doubt still remains, the principle of 
Sexto Bonifacii VIII’® can be applied. Odia restringt, 
et favores conventt ampliart. This will mean that a 
favorable privilege can be considered real, and an, odiovs 
privilege personal.” 

4. Privileges can be favorable (favorabile), or 
odious (odiosum). A favorable privilege contains a fa- 
vor without causing diminution of the rights of a third 
party. Thus the privilege of an indulgenced altar is a 
favorable privilege since no loss, or curtailment of rights 
results from the use of the privilege. An odious privi- 
lege, however, contains a favor, but at the same time it 
diminishes the rights of a third person. HKxemption from 
tithes would be such a privilege. It is evident that an 
odious privilege is simultaneously both favorable and 
odious; the former in respect of the grantee, the latter in 
respect of interested parties. The reason of the division 
of privileges into favorable, and odious privileges is 
sought in the absence, or presence of prejudice to rights 
of third parties. 

5. Privileges can be affirmative (affirmatiwum), or 
negate (negativum).*? An affirmative privilege pro- 
vides the faculty to perform some action otherwise un-— 
lawful. Thus the faculty to absolve from reserved sins, 
to celebrate certain votive, or proper masses, to bestow 
special blessings, etc., are all affirmative privileges. A 
negatwe privilege, on the other hand, concedes an ex- 
emption from an act demanded by law. Such a grant 
would be the privilege not to fast on the days required 
by law. 

6. Privileges can be gracious (gratiosum), remu- 





18 Cocchi, Commentarium in Codicem Iurts Canonici, (Taurinorum Au- 
gustae, 1921), v. I, p. 184, scholion; Maroto, o.c., l.c. 

19 R. J. 15 in VI. 

20 Zoesius, Commentariwm in Ius Canonicum Universum, (Venetiis, 1757), 
lib. V, tit. XX XIII, n. 6. 

21 Raus, o.c., Le. 


34. Principles of Privilege According to the 
Code of Canon Law 


nerative (remunerativum), or onerous (onerosum). A 
gracious privilege finds its source in the pure liberality 
of a Superior. No precise attention is paid to the merits 
of the grantee. This does not mean that the Superior 
must not consider the worth of the person he desires to 
enrich with a privilege, but rather that the worth of the 
privileged person is not considered as a determining mo- 
tive in granting the privilege. A remunerative privilege 
is granted in view of some particular merit, or in grati- 
tude for the performance of some special service. In 
these cases the worth of the grantee has a direct influence 
on the benevolence of his Superior. Signal service in 
the interest of the Church may be thus rewarded. An 
onerous privilege has its foundation in justice. It is 
given in return for a burden assumed. This kind of a 
privilege will frequently be found in concordats. 

Maroto” records a special division of privilegium 
purum, and privileguum conventionale. Conceding that 
there is some difference between this division and the 
division of privileges into gracious, remunerative and 
onerous privileges, nevertheless Maroto’s division can 
bbe reduced to the division explained in the preceding 
paragraph. Privilegvwm purum is one which is granted 
without any contract, or any kind of mutual obligation. 
Hence it is practically a gracious privilege, altho it may, 
possibly, tend toward the notion of a remunerative privi- 
lege. Privilegium conventionale is founded upon reci- 
procal obligation. It will differ from an onerous privi- 
lege in this that it implies a public and explicit agree- 
ment. 

7. Privileges can be absolute (absolutum), condi- 
tional (conditionale), or modal (modale). An absolute 
privilege is granted without any conditions. Thus, if the 
Holy Father should grant a priest the privilege of saying 
mass in a private oratory, without stipulating any condi- 





22 Maroto, o.c., Le. 


Principles of Privilege According to the 35 
Code of Canon Law 


tions, the grantee would enjoy an absolute privilege, and 
he could use his privilege even if it were convenient to 
celebrate mass in a church. A conditional privilege has 
effect only when the conditions under which the privilege 
was conceded are fulfilled. Therefore such a privilege 
cannot be used irrespective of the stipulations of the 
grant because the Superior’s consent is not obtained if 
the conditions are not fulfilled. The existence of a con- 
dition in a privilege, aside from its presence in the re- 
script, can often be learned from the object of the privi- 
lege. Thus a’ blind priest who enjoys the privilege of 
celebrating mass, cannot use this privilege if the assist- 
ance of another priest, or deacon cannot be obtained. 
A modal privilege concerns the manner in which the 
faculty conceded by the privilege may be exercised. Such 
a privilege is likewise restricted to the stipulations found 
in the rescript. In effect a modal privilege is practically 
the same as a conditional privilege. 

8. Privileges can be divided according to the man- 
ner in which they were conceded. Thus privileges are 
called motu proprio, or ad mstantiam. The former is 
granted without any reference to a petition even if some 
favor had been requested of a Superior. A privilege 
conceded ad instantiam is given in compliance with a 
petition. Should no petition of any kind be made, it is 
clear that the privilege is granted motu proprio. But if 
some petition were directed to the proper Superior, the 
reseript will have to be examined in order to learn 
whether the grant is in compliance with the petition, or 
conceded independently of it. 

9. The manner of acquisition furnishes another 
point of division of privileges. The various methods of 
obtaining a privilege will be treated at length in a later 
chapter. At present it is sufficient to mention that 





23 Cf. ch. IV, 


36 Principles of Privilege According to the 
Code of Canon Law 


according to this point of division, privileges are acquired 
by direct concession, communication, custom, and pres- 
cription. 

10. Privileges can be written (scriptum), or non- 
written (non-scriptum). The former is obtained by 
means of a rescript: the latter may be acquired in three 
ways: (a) orally, as, for instance, in an audience with 
the Holy Father; (b) by custom, when the community 
acting as a unit fulfills the requirements of canons 20- 
27;°* (c) by prescription, when an individual person 
obtains a right according to the provisions of law.” 

11. Privileges can be temporary (temporale), or 
perpetual (perpetuum). A temporary privilege is con- 
fined to the limits of the time determined in the grant. 
This limit of time may be expressed in terms of months, 
or years, or even according to the number of cases. An 
individually personal privilege is always a temporary 
privilege, because at most it is limited to the life of the 
grantee. In other privileges, the phrase ad beneplacitum 
meum, or its equivalent, will indicate the temporary 
character of the privilege. A perpetual privilege is one 
which is conceded without limit of time. Corporal, and 
real privileges are of such a character, provided they 
adhere to a moral person, dignity, or thing of itself per- 
petual. According to canon 70 a privilege is perpetual 
unless the contrary is evident. Hence the limitation of 
time must be proved.*¢ 

12. Finally, privileges can be private (privatum), 
or common (commune). A private privilege goes no far- 
ther than to consult the benefit accruing to an individual 
person. It matters little whether, in point of fact, several 
persons enjoy the same privilege as long as the privilege 
is concerned with the individual convenience, and not 
with the welfare of the persons considered as a unit. 
24 Of. ch. IV. 


25 Raus, o.c., le., ef. p. 66. 
26 Maroto, o.c., Le, 





Principles of Privilege According to the 37 
Code of Canon Law 


Therefore, an entire community may enjoy a private 
privilege. All that is necessary is that the accruing 
benefit be found directly in the members of the commu- 
nity. A common privilege, on the other hand, is granted 
for the common good. Such a privilege would be con- 
ceded to a community, a class of persons, or an assembly. 
‘Che privilege is considered as directly affecting the asso- 
ciation rather than its members. Individual members 
of such an association receive the benefit of a common 
privilege, but in no way does the privilege become their 
individual right. Hence, individual members cannot re- 
nounce their association’s common privileges.77 Facul- 
ties of dispensation, and privileges of precedence vested 
in a community, or assembly are examples of a common 
privilege. 





SEA bs dey ee Fe 


CHAPTER IV 
ACQUISITION OF PRIVILEGES. 


The Code enumerates four ways in which a privi- 
lege can be acquired. These methods are direct con- 
cession, communication, custom and prescription. The 
latter two have much in common, but for the sake of 
clarity they will considered separately. 


Can. 63. § 1. Privilegia acquiri possunt non solum 
per directam concessionem competentis auctoritatis et per 
communicationem, sed etiam per legitimam consuetudi- 
nem aut praescriptionem. 


1. Direct Concession of Privileges. 


Direct concession is the principal method of obtain- 
ing a privilege.t This concession is twofold. The legis- 
lator, or competent authority may accede to the peti- 
tion of one of his subjects, or he may confer the privilege 
entirely of his own volition, and for reasons known to 
himself. The former concession is known as ad instan- 
diam and the latter is called motu proprio. 


As observed above, the legislator is no wise obliged to 
commit his favors to writing.? Every concession has its 
source in the benevolent will of a Superior irrespective 
of the public disposition made of the concession. This 
is true even from the nature of the case but Corpus Iuris 
is not silent on the point. Paul II expressly states that 
concessions are made both orally and by document.’ 





1 Ayrinhac, o.c., n. 157; Santi, il hi Iuris Canonici, (Ratis- 
bonae, 1886), lib. Vv; tit. XX XITI, 

2 Cf. p. 18. 

3 C. 3 de penitentiis et remissionibus, V, 9 in Extra, Com. 


[ 38 ] 


Principles of Privilege According to the 39 
Code of Canon Law 


From this it does not follow that a privilege granted 
orally has the same probative force as one set down in 
a document.* 

Confirmation of a privilege is allied to concession. 
Altho confirmation differs from concession in this that 
it supposes a privilege to exist, while the latter produces 
the privilege, yet in some cases confirmation of a privi- 
lege is not more than a mere recognition of a former 
privilege. Should this obtain, confirmation leaves the 
privilege with all the defects it may possibly have. It 
would not validate them.® Such confirmation of a privi- 
lege is called in forma communi.® 

Another form of confirmation removes possible de- 
fects. This form is called in forma specialr." An exam- 
ination of the former privilege is presupposed in this 
form of confirmation. Practically it amounts to a new 
concession.® 

The extent of the confirmation accorded a privilege 
must be learned from the document. If the phrase ex 
certa scientia is present, the confirmation is in special 
form, because this phrase gives the same effect as if the 
legislator were to grant the concession entirely of his 
own will.® In order to have the same juridical effect, it 
is not absolutely necessary to use these words verbatim.?° 
In case of a doubt concerning the value of confirmation 
of a privilege, the common form must be understood.” 
The presumption is that the legislator has not changed 

4 Cf, p. 136. 


5 Amort, Elementa Iuris Canonici, (Ferrariae, 1763), lib. V, tit. XX XIII, 
§ 22. 

6 ©. 7, X, de confirmatione utili vel inutsl, IT, 30; ¢. 5, X, de con- 
cessione praebendae et ecclesiae non vacantis, III, 8; Suarez, o.c., 
lib. VIII, c. 18, n. 3-4, 8; Sanguineti, o.c., n. 140. 

7 ©. 8, X, de confirmatione utili vel inutilt, II, 30; Suarez, o.c., lib. 
VIII, c. 18, n. 5; Sanguineti, o.c., Le. 

8 Suarez,o.0,,. ub. VIII, c. 18, n. 12. 

9 Barbosa, Tractatus Varwt, (Lugduni, 1660), De Clausulis Usufrequen- 
tiortbus, claus. LIX. 

10 Suarez, o.c., lib. VIII, c. 18, n. 6. 

11 Sanguineti, o.c., l.c, 


40 Principles of Privilege According to the 
Code of Canon Law 


his will. Consequently, possible revocation of a privi- 
lege in the past, all its defects, and restrictions remain 
in force unless the document embodying the confirmation 
of the privilege clearly shows that it has been granted 
ex certa scientia. 

Innovation, or renewal (innovatio) of a privilege is 
almost the same as confirmation of a privilege. Either 
the document or the precise favor can be renewed.’? 
One can be renewed without the other.** Renewal of the 
document will not be of great importance except in rela- 
tion to proving a privilege. But renewal of the favor 
contained in the document enjoys some importance. This 
importance arises from the root-meaning of the word 
unnovatro and its actual juridical usage. HKtymologically, 
‘‘to renew’? means to give back, to restore, to return. 
Hence to renew a privilege would also mean a restora- 
tion of revoked privileges. But, save for the phrase 
ex certa scientia, this is not the fact. Renewal of a 
privilege merely confirms the privileges which have not 
been revoked."* 

Renewal of a privilege can be in common or in special 
form. In the first instance, privileges remain in the 
same state as they were before renewal, while in the 
second ease defects are removed. 

Since privileges are very often conceded in the form 
of a rescript, it will be well to bear in mind a few funda- 
mental notions concerning a rescript itself.» . 


The Roman emporers were often asked for an inter- 
pretation of a law. Their answer was known as rescrip- 
tum. Hence the word means a written answer to a peti- 
tion. But since the answer came from one who had 
authority, the formal meaning of rescript is: a written 
12 Reiffenstuel, o0.c., lib. V, tit. XXXIII, n. 76. | 
13 Suarez, o.c., lib. VIII, ¢. 20, n. 4. 

14 Suarez, o.c., lib. VIII, ¢. 20, n. 1; Reiffenstuel, o.c., lib. V, tit. 


XXXII, n. 74. 
15 Maroto, o.c., V. I, n. 271. 


Principles of Privilege According to the 41 
Code of Canon Law 


answer gwen by a prince, or by one in authority..® The 
word rescriptum was taken up by the Roman Pontiffs. 
Wernz’ points out that even before the time of Pope 
Siricius the word was in use. The word continued in 
favor, and from the time of Alexander III (1159-1180) 
we find many responses or rescripta. Bernard of Pavia 
wrote the first commentary on rescripts, and two centu- 
ries later the whole theory of rescripts and their use 
were perfected by the Rules of Apostolic Chancery. 
Finally with some change, especially concerning the sub- 
ject of a rescript, the same title is found in the Code 
of Canon Law. 

During the law of the Decretals, anyone could ask 
for a rescript unless he were (a) a false or recalled 
procurator, (b) a heretic or schismatic, (ec) an excom- 
municate.’® Only the major excommunication was con- 
sidered and this, too, in causes not connected with the 
same excommunication. An excommunicated person 
could file a petition in his own defense. On September 
9, 1898, the Sacred Penitentiary said that reseripts of oc- 
cult excommunicates were valid in the internal forum, 
provided they consisted of minor favors such as blessing 
rosaries, ete.*? Pius X in his constitution Sapient: Con- 
silio made no exceptions unless a person were excom- 
municated by name, or suspended a divinis by the Holy 
See.*? The Code is even more generous. None at all are 
excepted: but the condition of excommunication, sus- 
pension, or personal interdict must be mentioned in the 
petition for a rescript.” 

Besides acceding to the petition of one of his sub- 
jects, the legislator can grant a privilege motu proprio. 





16 Maroto, o.c., l.c. 

17 Wernz, o.c., v. I, n. 149. 

18 Can. 36-62. 

19 C, 1, de rescriptis, I, 3 in VI. 

20 In Wernz, o.c., v. I, n. 151, ft. 30. 

2T AAS. v. I, p. 64. 

22 Can. 36; 2265, §2; 2275, n. 2; 2283, 


42 Principles of Privilege According to the 
Code of Canon Law 


A concession of this kind is one in which the Superior 
is actuated by motives of his own, independently of any 
petition. Such independent action does not signify 
that in no way at all was the matter brought to the Su- 
perior’s attention, but it does mean that the favor was 
granted without reference to the petition, or for reasons 
other than the ones mentioned in the petition. In a 
word, in cases where some petition was made, the final 
cause is the legislator’s will, and not the petition. 


A privilege granted motu proprio validates a sub- 
reption (subreptio) or a suppression of truth, but it does 
not validate the proposal of a false cause, provided this 
cause were the only one mentioned.** The reason is that 
the suppression of truth may render the privilege indis- 
ereet while the proposal of a false cause vitiates the 
benevolent will of the Superior.” 


While it is true that the phrase motu proprio will 
validate a subreption, it must be borne in mind that this 
subreption must not be intrinsic, that is, it must not 
pertain to the inability of the subject who requests the 
favor. If the subreption were intrinsic, the privilege 
would not be valid,” unless a derogatory clause were 
added. 


Similarly resecripts, even if granted motu proprio, 
cannot be sustained if the grant is contrary to legitimate 
custom, or a particular statute, or the rights of a third 
person. Derogatory clauses, however, can remove this 
disability.”7 





23 Palao, o.c., tr. 3, disp. 4, p. 2, §6, n. 1. 

24 Can, 45. 

25 Palao, o.c., l.c., n. 3. 

26 Palao, o.c., l.c., n. 7; Barbosa, o.c., claus. LXXIX. 
27 Can. 46. 


Principles of Privilege According to the 43 
Code of Canon Law 


2. Communication of Privileges. 


A. Development and History of Communication of 
Privileges. 

Strictly speaking, the method of obtaining privileges 
by communication, pertained to religious Orders. But 
the word ‘‘communicatio’’ was used also in other con- 
cessions of privileges. Thus Urban VIII in his consti- 
tution, Quonam divinae, June 1, 1627, communicated the 
privileges of the Roman schools to the new German Col- 
lege in Prague.?® On the same day the Pope communi- 
eated the same privileges to the new German College in 
Vienna.”? This form of communication of privileges was 
known as ad wstar. 

The possibility of such a privilege is clear from the 
consideration of the real cause of a privilege. The will 
of the legislator is the basis upon which all privileges 
rest. As far as validity is concerned, it matters little 
whether the terms of the privilege be defined in so many 
words, or conceded according to the favors of another 
erant. Innocent IV, while not using the term ad instar 
clearly refers to this kind of a privilege when he dis- 
cusses the privileges of the students in Rome.*° 

A privilege ad instar was a norm according to which 
a later privilege was patterned. The second was an imi- 
tation of the first privilege, and it included all the favors 
which had been originally granted.*? As long as the first 
concession remained the same, no difficulty in under- 
standing the second privilege presented itself. But what 
if the initial concession were augmented? Did the second 

28 Bull. Rom. tom. 13, p. 551. 

29 Bull. Rom. tom. 13, p. 556. 

30 C, 2, de prwilegiis et excessibus privilegiatorum, V, 7 in VI; Volumus 
et statuimus, ut studentes im scholis ipsis penes sedem eandem 
talibus privilegiis omnino, libertatibus et immunitatibus gaudeant, 
quibus gaudent studentes in scholis, ubt generale regitur studium, 


. ac recipiant integre proventus suos ecclesiasticos sicut ill. 
81 Suarez, o.c., lib. VITI, c. 15, n. 2. 


44. Principles of Privilege According to the 
Code of Canon Law 


privilege likewise receive this increase? To give an an- 
swer to these questions, it must be remembered that 
the second privilege is an imitation of the first, not merely 
as a model but with all its qualifications.** The aspect 
of model would appear in such a concession: We grant 
you a privilege as Paul enjoys. The aspect of qualifica- 
tion would be: We grant you Paul’s privilege. From 
this it can be seen that only the external imitation is 
present in the first instance, while an intrinsic note is 
found in the second. Now this imitation exists primarily 
at the time when the second concession is made. From 
then on the two privileges are distinct, and bear relation 
to each other only in similitude. Both are self-existent 
and independent. Therefore what would accrue to the 
first would not benefit the second, and vice versa.*? 

But if the first privilege were invalid, no privilege 
at all would be conceded to the second grantee because 
the foundation for the concession would be lacking. Mani- 
festly, should something be granted after the fashion of 
another privilege, but the latter be actually without val- 
idity, the former would be similarly invalid.** 

Communication of privileges among the Orders was 
reserved for the reign of Leo X. Before that time and 
even before the beginning of sixteenth century instances 
of communication are at hand, but it was not the same 
rule that Leo X inaugurated. Sixtus IV in his constitu- 
tion, Sedis Apostolica, May 27, 1474, communicated the 
privileges of the Mendicants to the Congregation of Saint 
Francis of Paul.** Alexander VI, in his constitution, 
Ad ea, May 1, 1501 likewise communicated privileges 
to the Minims.** A few years later, June 17, 1508, Julius 
II, in his constitution, Htst, communicated the privileges 





83 Suarez, o.c., lib. VIII, c. 15, n. 3-5. 
34 Suarez, o.c., lib. VIII, c. 15, n. 6. 
35 Bull. Rom. tom. 5, p. 213. 

86 Bull, Rom. tom. 5, p. 381. 


32 Palao, o.c., tr. 3, disp. 4, p. 2, §8, n. 4 
3 
n 





Principles of Privilege According to the 45 
Code of Canon Law 


of the Mendicants to the Augustinians.** While these 
grants were called communication of privileges, they did 
not allow for a general exchange of privileges. 


The principle of general exchange of privileges 
among the mendicant Orders was promulgated by Pope 
Leo X in his constitution, Dudwm, December 10, 1519. 
The Pope writes: Nos ad singulos Ordines******** motu 
proprio et ex mera nostra scientia et liberalitate, de 
apostolicae auctoritatis plentudine communicavimus. 
Illaque omma et singula mter dictorum Ordinum per- 
sonas, pariformiter communia fursse et esse volumus, 
prout in singulis litteris praedictis plenius continetur.*® 
‘The Orders named in this constitution are: Praedica- 
tores, Minores, Kremitae 8S. Augustini, Carmelitae, Servi 
Beatae Mariae Virginis, and Minores fratres. 


With this principle in force it was only a question of 
time before all Orders, whether mendicant or not, would 
exchange their privileges. Cognizant of the self-sacri- 
ficing and heroic work of all Orders, Pius V granted all 
of them equal consideration in the matter of concessions. 
Consequently, in his constitution of August 16, 1567, 
Ea supernae, Pius V laid down the more ample rule that 
all Orders henceforth would communicate their privi- 
leges.*® In a later constitution, Romani Pontificis, June 
30, 1570, Pius V made a reservation concerning the com- 
munication of privileges. This reservation was that 
privileges refering to temporalities would not be com- 
municated.*° This, of course, was eminently just, since 
the extreme poverty of the Mendicants did not obtain in 
the non-Mendicant Orders. The latter could more easily 
afford contributions and assessments. Therefore, unless 
the non-Mendicant Orders were individually exempted 





37 Bull. Rom. tom. 5, p. 421. 
38 Bull. Rom. tom. 5, p. 732. 
39 Bull. Rom. tom. 7, p. 586. 
40 Bull. Rom. tom. 7, p. 837. 


46 Principles of Privilege According to the 
Code of Canon Law 


from these payments, they enjoyed no privilege in this 
matter. 

The word ‘“‘communication’? now had a new and a 
definite meaning. It meant that when one Order received 
a privilege, all the other Orders were by that very fact 
similarly privileged. Still the former use of the word 
was retained. Urban VIII employed it when he con- 
ceded the indults of the Congregation of Saint John of 
God to the Mendicant Orders.** 

Clement VII did not amplify the concessions of his 
predecessors. In his constitutions he specifies the limits 
of the communication conceded. Thus he communicated 
the privileges of Conventuals and Camaldulese monks to 
the Cappuchins,*® and the privileges of the monks of Saint 
Augustine to the Jeswti Fratres of Saint Jerome.* 

In communication of privileges, favors relating to 
Prelates were communicated to Prelates, convents to con- 
vents, feaists to feasts, ete. Julius IT in his letter of June 
1, 1509, to the Bishop of Cordova made this stipulation. 
Latter-day communication of privileges retained this or- 
der. But personal privileges of individual religious were 
in no wise communicated to their associates in religion.*® 
Similarly privileges conceded to a church or to an altar 
in honor of a certain saint were not subject to communi- 
eation.*® Thus the Portiuneula indulgence, while com- 
municated to the churches of the Franciscan Order, did 
not obtain in the churches of the other Orders. 

In conceding communication of privileges, the Su- 
preme Pontiffs presupposed that the new privileges 
would not interfere with the regular observance of the 
rule existing in each Order. The reason for this is evi- 
dent: the Pope intends to foster religion and not to 





41 Bull. Rom. tom. 13, p. 169. 

42 Bull. Rom. tom. 6, p. 113. 

43 Bull. Rom. tom. 6, p. 158. 

44 In Reiffenstuel, o.c., lib. V, tit. XXXIII, n. 59. 
45 Reiffenstuel, o.c., lib. V. tit. XXXITT, n. "60. 

46 Reiffenstuel, o.¢., lib. V, tit. XX XIII, n. 62. 


Principles of Privilege According to the 47 
Code of Canon Law 


weaken it in any way. Thus since it would have been 
against the rule of some Orders that members of the Or- 
der should act as witnesses in court, this item of the rule 
prevented them from participating in the privilege of 
giving testimony conceded to the military Orders.* 

Before discussing the present terminology relative 
to communication of privileges, it is well to see what 
expressions were used by earlier canonists, and how these 
expressions can be blended to present day legislation. 

Palao*® mentions three ways of communication of 
privileges. The first is by aggregation, or by extension 
of the same privilege. No new concession is made, but 
more subjects are brought within the scope of one and 
the same privilege. The second manner obtains in in- 
cluding secondary persons in a privilege made to the 
principal grantee. In both of these instances the acces- 
sory follows the principal privilege. Therefore the ac- 
cessory privilege increases, or decreases according to the 
fortunes of the principal privilege. The third method 
amounts really to a new concession of privilege, and is 
independent of the fortunes of the first privilege. Palao 
adds that the Jesuits could not use their own privileges, 
or the ones communicated to them unless the communi- 
cation came thru the General of the Society. This was 
due to the Jesuit constitutions which make the entire 
government depend on the General. Other religious 
bodies were not similarly restricted. 

Schmalzgrueber*® says there are two ways to receive 
privileges by communication, but his ideas are really the 
same as those of Palao. The first method is by extension, 
or aggregation. This method implies that the extended 
grants follow the fortunes of the original privilege. The 
other method ad instar is twofold: first dependently on 
the initial privilege and similarly affected; second inde- 

47 Schmalzgrueber, o.c., lib. V, tit. XXXITI, n. 88. 


48 Palao, o.c., tr. 3, disp. 4, p. 2, §9, n. 1-5. 
49 Schmalzgrueber, o.c., lib. V, tit. XXXIIT, n. 77-79. 


48 Principles of Privilege According to the 
Code of Canon Law 


pendently of the first privilege so that it retains all its 
force without reference to the fortunes of the first privi- 
lege. 

The modern way of division by communication is 
in forma aeque principali, and formai accessoria. Privi- 
leges of the first class are independent, those of the sec- 
ond are not. In this way Maroto, following the Code, 
joins the aggregations and extensions of Palao and 
Schmalzgrueber in one group, and leaves the ad wmstar 
privileges in a separate class.”° 


B. Present Legislation concerning the Communication 
of Privileges. 

Can. 64. Per communicationem privilegiorum, etiam 
in forma aeque principali, ea tantum privilegia impertita 
censentur, quae directe, perpetuo et sine relatione ad cer- 
tum locum aut rem aut personam concessa fuerant primo 
privilegiario, habita etiam ratione capacitatis subiecti, 
cui fit communicatio. | 


Canon 64 lays down the present law concerning com- 
munication of privileges even in forma aeque principali. 
Four items must be kept in mind: manner of concession, 
stability of the privilege, extent, and capacity. 

Directe. A privilege is conceded directly when the 
beneficiary, whether a moral or physical person, is the 
immediate object of the Superior’s good will. For in- 
stance, if an institute asks the Holy Father for the privi- 
lege of saying a proper mass in honor of some mystery 
or saint, the concession of this favor would be direct. 
In order to have the entire institute benefit by 
this concession, the extent of the grant must be well 
defined. This is no new provision, for even in the time 
of Urban VIIT a constitution of the Pope was necessary 
to extend the feast of Blessed Margaret of Cortona, now 


50 Maroto, o.c., v. I, n. 298. 





Principles of Privilege According to the 49 
Code of Canon Law 


canonized, to the entire Order of Saint Francis. Until 
December 13, 1623, this feast was confined to the city of 
Cortona. The constitution Caelestis aquae extended the 
feast.”? 

Now, suppose a Congregation petitioned the Holy 
Father to communicate the privileges of the Franciscans 
to it. Should the Pope accede to the request, the privi- 
leged Congregation could then celebrate the feast of Saint 
Margaret. If then a second institute were granted com- 
munication of the privileges enjoyed by the Congrega- 
tion just mentioned, the feast of Saint Margaret would 
not be communicated because the Congregation did not 
receive it directly. 

Another case: a society is joined to an archconfra- 
ternity according to the provisions of canons 720-723. 
According to canon 722 only those privileges would be 
communicated which had been the object of direct con- 
cession by the Holy See. Should some privileges have 
been conceded to the archeconfraternity by means of com- 
munication, the same privilege would not accrue to the 
aggregated society.” , 

In the same manner that communicated privileges 
eannot themselves be subject to further communication, 
so, too, privileges which arise from custom, or prescrip- 
tion are not subject to communication. Hence, if a so- 
ciety by constant use thru the prescribed number of 
years” obtains a privilege, the favor indeed is valid be- 
fore the law, but, it is not liable to communication. Sim- 
ilarly should an individual person legitimately prescribe 
a privilege, it is valid but it does not become the source 
of communication. 

Perpetuo. This word excludes all favors granted 
for a limited time. Consequently all quinquennial, or 
decennial privileges are excluded from communication. 





51 Bull. Rom. tom. 13, p. 80. 
52 Vermeersch-Creusen, o.c., v. I, n. 713. 
53 Can. 27, §1. 


50 Principles of Privilege According to the 
Code of Canon Law 


But in order that the concession might be permanent, it 
is not necessary that this precise word be found in the 
rescript. Barbosa mentions several of similar force: 
in infinitum, semper, in saecula saeculorum, ete.” 


Sine relatione. Relatively likewise excludes com- 
munication. The reason is evident and flows from the 
object of the privilege. If a privilege were granted to 
honor the tomb of a particular saint, or a miraculous 
picture, no foundation would exist for the communicated 
privilege. Thus, the proper masses conceded to religious 
were not communicated.” 


Capacitas. The three requisites named above con- 
sidered privileges from the aspect of the grant itself. 
The fourth requisite, however, considers the capacity of 
the grantee to receive a definite privilege. 


Incapacity can arise from several sources. Thus, 
for example, religious women are incapable of receiving 
privileges relative to the exercise of Sacred Orders. 
Again the rule of a society may forbid some activity, 
e. g., acquisition of property. No matter how the incapa- 
city of the grantee exists, he cannot enjoy privileges 
which might be communicated to him. 


Privileges communicated in forma aeque principali 
retain their full force irrespective of the possible in- 
crease, decrease, or loss of the original privileges. Reli- 
gious Orders ehioned this form of communication until 
the time of the New Code.** 


54 Barbosa, 0.c., Dictiones Usufrequentiores, CCLIV, CLXIII. 
55 §. C. R., 20 Mar., 1706, Coll. n. 269. 
56 Noldin, Theologia Moralis, (Oeniponte, 1921), 13 ed., v. I, n. 194. 


Principles of Privilege According to the o1 
Code of Canon Law 


Can. 65. Cum privilegia acquiruntur per communi- 
cationem in forma accessoria, augentur, imminuuntur, 
vel amittuntur ipso facto, si forte augeantur, imminuan- 
tur, vel cessent in principali privilegiario; secus si acquir- 
untur per communicationem in forma aeque principali. 


' Assuming the four requisites outlined above for the 
communication of privileges, a further restriction is 
placed on communication in forma accessoria. Acces- 
sorium has reference only to the privilege. It does not 
consider the dignity of the person who benefits by this 
method of communication. It may occur that the second 
grantee may be even more worthy of a privilege that the 
first, yet nevertheless, should the first grantee lose his 
privilege, the second grantee would likewise lose his 
privilege. 


| The present legislation clarifies the former legisla- 
tion.’ Whatever happens to the original grant, whether 
it increases, or decreases, or ceases, the accessory privi- 
lege is similarly affected.°*8 Privileges and indulgences 
accruing to aggregated societies come under this head.*® 
The Sacred Congregation of Indulgences decided the 
question of indulgences on January 31, 1893. The ques- 
tion was asked whether indulgences revoked by the Pope 
could nevertheless be enjoyed by those to whom these 
indulgences had been communicated, unless there were 
express mention of revocation. The answer was: neg- 
ative immo falsa. 

Nuns with their novices receive communicated privi- 


57 Cf. Palao, o.c., tr. 8, disp. 4, p. 2, 9, n. 1-5; Schmalzgrueber, o.c., 
HOV tiie eA LLL, ny 77-79. 

58 Augustine, A Commentary on the New Code of Canon Law, (St. Louis, 
1921) 4 ed., v. I, p. 158. 

59 Blat, Commentarium in Textum Codicis Iurts Canonici, (Romae, 1921), 

He ove Lene las. 
60 ASS. v. XXV, p. 508. 
61 C, 613, § 2; ¢, 567, § 1. 


52 Principles of Privilege According to the 
Code of Canon Law 


leges in forma accessoria.’ Their servants also are in- 
cluded.” 


Religious of simple vows do not receive communica- 


tion of privileges, but enjoy only those privileges which 
are received by formal concession.” 


C. The present Value of Privileges obtained before the 
Code by the communication of Privileges. 


In regard to communication of privileges it must 
be kept in mind precisely what kind of communication 
is forbidden by the terms of the entire canon 613.% Altho 
it may be said that a general principle embodying total 
exclusion of communication of privileges among the reli- 
gious is enunciated in the first paragraph of canon 613, 
then, obviously, an exception is made in the second para- 
graph of the same canon. : 


In the case of nuns, communication of privileges 
un forma accessoria still exists. Practically speaking, the 
revocation of communication of privileges among the 
religious is confined to communication in forma aeque 
principal, 

The authors who have commented on canon 613, § 1, 
do not agree on the interpretation of the new law. In 
order to set forth clearly the matter for discussion, let 
us see what is admitted. All agree that as a practical 
rule, the first paragraph of canon 613 refers to commu- 
. nication of privileges wm forma aeque principali. Then 
all agree that this form of communication is forbidden 
in the future. At this point unanimity ceases. Authors 


62 Cocchi, Commentarium in Codicem Iuris Canonici, (Taurinorum Augus- 
tae, 1921), v. I, n. 117; Noldin, o.c., v. I, n. 194 

63 Augustine, o.c., v. III, p. 511. 

Can. 613, $1. Quaelibet religio iis tantum privilegiis gaudet, quae vel 
hoc in Codice continentur, vel a Sede Apostolica directe eidem con- 
cessa fuerint, exclusa in posterwm qualibet communicatione. 2. Privi- 
legia quibus gaudet Ordo regularis, competunt quoque monialibus 
evusdem Ordinis, quatenus eorum sint capaces. 


} 


Principles of Privilege According to the 53 
Code of Canon Law 


disagree on the present value of privileges obtained in 
the past by communication. The question is important 
and the opposing sides, at least in their practical con- 
clusions are well defined. 

Prummer,® for instance, argues that these privileges 
are still valid. His reasons are: (a) one hundred years, 
or immemorial possession induces the presumption that 
a privilege was granted; (b) all privileges not expressly 
revoked remain in force according to canon 4; (c) the 
word fuerimt in canon 613, $1, refers to the future: this 
word is to be understood with in posterum. 

Vermeersch™ bases his argument on the requisite 
of canon 4. This canon demands express revocation. 
Vermeersch holds that privileges obtained in the past 
by communication are still valid because canon 613, $1 
can be interpreted in this way. At least express revoca- 
tion is not evident. Besides this basic argument, Ver- 
meersch maintains that a strict literal interpretation of 
the first paragraph of canon 613 would be foreign to 
the mind of the legislator as the Orders have enjoyed 
centuries of use of some of these privileges. A prac- 
tical reason also influences Vermeersch. He says serious 
doubts would arise in regard to all privileges of religious 
since it would be difficult to distinguish how the privi- 
leges had been obtained. Lastly Vermeersch says that 
the lenient interpretation is received in Rome. 

Brandys® argues in the same way as Vermeersch, 
allowing privileges communicated in the past to con- 
tinue. 

Fanfani® rests his case on canon 4. According to 


65 Prummer, Manuale Iuris Canonici, (Friburgi Briscoviae, 1920), 2 ed., 
pracnotamen ad q. 239. 

66 Can. 4. Jura aliis quaesita, ttemque privilegia atque indulta quae, ab 
Apostolica Sede ad haec usque tempora personis sive physicis sive 
moralibus concessa, in usu adhuc sunt nec revocata, integra manent, 
nist hutus Codicis canonibus expresse revocentur. 

67 Vermeersch-Creusen, o.c., v. I, n. 615. 

68 Brandys, Kirchliches Rechtsbuch, (Paderborn, 1920), 2 ed., n. 89. 

69 Fanfani, De Iure Religiosorum, (Taurini-Romae, 1925), 2 ed., p. 362. 





4, Principles of Privilege According to the 
Code of Canon Law 


Fanfani, the question cannot be solved from the wording 
of canon 613, § 1. Consequently canon 4 is to be applied. 
Finally, in dubiis melior est conditio possidentis. 

Papi,’ Woywod,” and Schaefer” bring no new argu- 
ment. They satisfy themselves by comparing canons 4 
and 613, § 1. 

Augustine” states that the law in question is not 
retroactive, and hence the Orders may retain what they 
possess except where the Code rules otherwise. 

Larraona, in the periodical Commentarium pro Relt- 
giosis™ inclines to the same lenient interpretation of the 
new law on the communication of privileges among the 
religious. 

On the other hand Blat” takes sharp issue with the 
contentions of the above authors. The word tantum 
decides the issue. This expression has a taxative mean- 
ing. It includes only the items mentioned. HKverything 
else is excluded. Blat cites Barbosa for the juridical 
force of the word tantum. Now, according to canon 613, 
§ 1, each religion (quaelibet religio) enjoys only those 
privileges contained in the Code, or directly conceded by 
the Holy See. All communication, then, according to 
this paragraph, is excluded for religious. The clause 
exclusa in posterum qualibet communcatione is to be 
taken with the word tantum. Hence even communication 
im forma accessoria is eliminated in principle. This form, 
however, is immediately conceded to nuns relative to 
privilege existing in the same Order. 

Fuhrich is just as emphatic for the clause wis tantum 
privilegis gaudet."®© Of the same opinion are Chelodi,” 

70 Papi, Religious in Church Law, (New York, 1924), p. 263. 
71 Woywod, A Practical Commentary on the Code of Canon Law, (New 

York, 1925), v. I, n. 48, 529. 

72 Schaefer, Das Ordensrecht, (Munster, 1923), p. 271. 


73 Augustine, o.c., v. III, p. 333-4. 

74 Commentartum pro Religiosis, v. III, p. 205-214. 
75 Blat, o.c., v. II, n. 689. 

76 Fuhrich, De Religiosis, (Oeniponte, 1919), n. 145, 
i Chelodi, Ius de Personis, (Tridenti, 1922), n, 280, 


Principles of Privilege According to the 55 
Code of Canon Law 


Leitner,” Cicognani,” Hgger,®° and Il Momtore Eccle- 
stastico.® 

Which is the correct interpretation of canon 613, § 1? 
An analysis of the wording of the canon seems to favor 
the same conclusion which Blat proposes. Before the 
Code communication was recognized as a legitimate 
source of privilege. In the present legislation for reli- 
gious it is not numbered among the only two sources 
recognized. Hence at least from its positive exclusion, 
communication of privileges for religious must be re- 
garded as revoked. The present tense of the verb gaudet 
means that any privilege not valid at the time of the 
Code is abolished. 

The arguments contrary to this opinion can prac- 
tically be reduced to five: (1) the alleged omission to 
revoke expressly; (2) Possession of one hundred years 
induces the presumption that a privilege was granted; 
(3) Revocation of communicated privileges would be 
foreign to the mind of the legislator; (4) The law of 
canon 618, § 1 is not retroactive; (5) The verb concessa 
fuerint is future time. 

These arguments do not seem to be convincing. But 
in order that due consideration may be accorded them, 
each one will be examined separately. 

(1) Canon 4 demands express revocation in order 
that a privilege contrary to the present law may cease. 
It does not, however, determine what formula, if any, 
must be used. Express revocation means explicit revo- 
cation. This can be had either by the use of the custom- 
ary formula revocato privilegio,” or by the positive ex- 
clusion of an item when, to obtain force, it would have 





78 Leitner, Handbuch des katholischen Kirchenrechts, (Regensburg, 1922), 
2 ed. v. IIT, $3, n. 8, 1, 2. 

79 Cicognani, o.c., p. 279. 

80 Egger, Das neue Ordensrecht, (Freiburg, 1919), p. 23. 

81 Tl Monitore Ecclestastico, anno 1918, p. 194, 366-7. 

82 E.g., 519; 522; 1576, $1. 


56 Principles of Privilege According to the 
Code of Canon Law 


to be mentioned.®* Obviously, the usual formula given 
above is not employed in canon 613, § 1. But explicit 
revocation is obtained by the positive exclusion of com- 
munication as a source of privilege.“ The use of the 
present tense (gaudet) specifies the time when the privi- 
leges of religious are valid.®* When three methods of 
obtaining privileges are possible and only two are 
allowed, it follows that the third is forbidden. For this 
reason it seems that canon 4 gives small comfort towards 
retaining such privileges. Privileges obtained in the 
past thru communication seem to be revoked by the clause 
vel a Sede Apdstolica directe eidem concessa fuerimt. 
Communicated privileges were never directly obtained 
from the Holy See. 

(2) Canon 63, § 2 gives the rule for presumed privi- 
leges. A presumption is a probable conjecture of some- 
thing uncertain. It is called an improper proof.8® When 
the truth is known, the presumption yields to it. No 
matter how long the presumption may last, it is always 
subject to this “reversal. Its nature does not change. 
Granting, for a moment, that communicated privileges 
can be considered as presumed privileges, their status 
would not be the same as privileges obtained by con- 
cession. Therefore, if a decision be made, such as is found 
in canon 613, § 1, it is evident that the presumption is 
destroyed, and with it the privilege presumed to have 
been granted. But the assumption that communicated 
privileges can be presumed as conceded privileges is not 
true. The privileges obtained thru communication were 
not used with the intention of introducing a custom, but 
on the contrary, were used as privileges directly con- 
eeded to others.* 





83 K.g., Necessary quasi-domicile is excluded by canon 93. 
84 Chelodi, o.c., n. 280. 

85 Leituer, 0.¢., le. 

86 Noval, De Iudiciis, (Augustae Taurinorum, 1920), n. 959. 
87 Fuhrich, 0.¢., N. 145 }. 


Principles of Privilege According to the 57 
Code of Canon Law 


(3) When an argument deals with what may be for- 
eign to the mind of the legislator, frequently no sure or 
decisive matter is at hand. Reasons of convenience will 
always be present, and for both sides of a question. 
What may appear proper to one will seem improper to 
another. At any rate, nothing more could be obtained 
from such an argument than a reason similar to epikeza, 
which interpretation always supposes the law to exist, 
and to consult the majority of cases. However, epekeia 
is inadmissible here because of the definite legislation. 
Granted, as Vermeersch says, that the new legislation 
would deprive the Orders of privileges used for centu- 
ries :°8 this would not affect a positive law evidently made 
to limit the number of privileges. A precedent is found 
in the Bull of Pius IV, In principis, which revoked all . 
privileges contrary to the decrees of the Council of 
Trent.®? This Council ushered in a new epoch. To fur- 
ther the common observance of its decrees, privileges 
contrary to the decrees were revoked. The present Code 
begins a new canonical epoch, and the same reason holds 
today as for centuries ago. The common law is to be 
observed unless legitimate exceptions are made. 

(4) Retroactivity of laws is not presumed.*? The 
common good demands that rights acquired in the past 
be left undisturbed unless some special reason decree 
otherwise.*? Augustine’s argument from the non-retro- 
active force of the law in canon 613, § 1 would be valid 
if there would be a possibility of considering retroactiv- 
ity in connection with this canon. But Augustine mis- 
applies the notion of retroactivity. There is no question 
of retroactivity, or non-retroactivity in canon 613, §$ 1. 
The validity of acts performed in the past by reason of 
communicated privileges is not touched at all by the legis- 





88 Vermeersch-Creusen, o.c., v. I, n. 615. 

89 Conc. Trident. Bulla 8.D.N.D.Pii Papae quarti, February 24, 1565, 
90 Can. 10. 

91 Vermeersch-Creusen, 0.c., v. I, n. 44, 


58 Principles of Privilege According to the 
Code of Canon Law 


lation of the New Code. The present right is removed 
by canon 613, § 1. This follows from the exclusion of 
communication as a source of privilege for religious. 

(5) The argument from the tense and mood of the 
verb concessa fuerint offers some difficulty. If this is 
the perfect subjunctive form, implying potentiality® a 
doubt can arise concerning the revocation of privileges 
communicated before the Code. But it seems that this 
idea of potentiality can hardly exist with the collocation 
of words in the last clause of the paragraph eaxclusa in 
posterum qualibet communcatione. This clause taken 
with the present tense of the principal verb gaudet elim- 
inates all manner of communication. In the very next 
paragraph the Code makes an exception to the rule. In 
order to have the last clause of the first paragraph con- 
strued with the possibly potential meaning of concessa 
fuerint, it would aoe to read exclusa qualibet m poste- 
rum communicatione. 

The authorized Site version of the canons con- 


cerning religious leaves little doubt that potentiality is 


not the implication of concessa fuermt.®* While this 
Kinglish translation has not the force of law, it does 
afford a confirmatory argument for the strict interpre- 
tation of the canon in question. Canon 613, § 1 reads: 
East Institute enjoys those privileges only which are 
contained in the Code, or may have been directly con- 
ceded to it by the Apostolic See; every communication 
of privileges 1s henceforth excluded. 

In conclusion, altho the wording of canon 613, $1 
seems to exclude a lenient interpretation, yet something 
must be said for the extrinsic authority of the authors 
who hold this opinion. The list of authors arrayed on 
the side of the lenient opinion is not insignificant, and 





92 Commentarium pro Religiosts, v. III, p. 212. 

93 Chelodi, o0.c., n. 280, p. 438, ft. 1. 

94 Canonical Legislation concerning Religious; authorized nous Trans- 
lation, (Rome, 1919). 


ee on 


Principles of Privilege According to the 59 
Code of Canon Law 


it would be too much to maintain that no extrinsic author- 
ity at all attaches to their opinion. Hence an author- 
itative interpretation of this canon by the Pontifical 
Commission will be welcomed. Meanwhile, in practice, 
the reliable Momtore Ecclesiastico says: We know that 
the application of canon 613 is suspended until the Sacred 
Congregation for Religious finishes its work of revising 
the privileges of the various religious Institutes.*° The 
reliability of the Monitore Ecclesiastico cannot be gain- 
said. Yet it is not beyond a legitimate desire to wish 
that the source of this information had been made public. 


3. Custom as a Source of Privilege. 


The Code recognizes custom as a source of privi- 
lege. Considered in its formal aspect, custom may be 
defined with Bouix as Ius per similiwm alicuius communi- 
tatis actuum frequentiam acqusitum;®® or with Wernz 
as ius quod ex facto sive frequentia illa operandi resul- 
tat." The tacit consent of the legislator is sufficient to 
obtain a right thru custom. Hence every custom which 
has the express disapproval of the legislator cannot con- 
tinue to exist to engender rights.°* The Code specifies 
e. g., rubrics, profession of faith as some of the canons 
under which customs are expressly disapproved.” Cus- 
toms which exist contrary to these prescriptions have no 
force whatever. 

Custom itself is twofold: (a) the frequency of similar 
acts; (b) the right which results from this repetition.” 
The former is the material cause of the latter. The 


95 Il Monttore Ecclesiastico, anno 1918, p. 366, ft. 

96 Bouix, De Principiis Iuris Canonici, (Parisiis, 1882), p. 351. 

87 Wernz, o.c., v. I, n. 187. : nit 

98 Barbosa, o.c., Tractatus locorwum communwwm argumentorum wits, 
n, XXV. 

99 BE. g., ec. 343, § 2; 346; 396; 403; 409, §2; 418, §1; 455, §1; 460, 
$2; 774, §1; 818; 978, §3; 1006, $5; 1041, 1056, 1181; 1356, 
$1; 1408; 1492; 1525; 1576, $1. 

100 Bouix, o.c., p. 350-1, 


60 Principles of Privilege According to the 
Code of Canon Law 


activity on the part of the community must be free, else 
no custom, no matter how long it exists, ean be valid. 

In the formation of Roman Law customs or mores 
were of prime importance. Divorce, for example, was 
restricted by custom and gradually some of these cus- 
toms became incorporated in the written law.’ 


Justinian’ gives the foundation for the definition 
of custom. He says: sine scripto ws ventt quod usus 
approbavit, nam diuturni mores consensu utentium com- 
probati, leges imitantur. In this statement the material 
and formal elements of custom are brought together. 
From this citation it seems to be evident that Justinian 
admitted the force of custom but some doubt is thrown 
on the value of the citation by a constitution of Constan- 
tine. This reads: consuetudines ususque longaevi non 
vuis auctoritatis est: verum non usque adeo sua valiturt 
momento ut rationem vincat aut legem” Ferrini after 
showing the relative importance of custom, reconciles 
these two texts by saying that Constantine’s constitution 
referred to customs existing before laws which rearranged 
the matter in question.’ Ferrini believes that another 
section of Justinian law represents a points of the same 
Constantinian law.’ If so, the matter becomes clear, 
for the constitution was given even in regard to those 
who claimed immunity from certain public duties. 


Gratian defined custom thus: zus quoddam moribus 
imstitutum quod pro lege suscipitur cum deficit lea.t’ 
Prummer™ thinks this definition is solid because a law 
can be deficient in clarity, in extension, or in utility. 


101 Bonfante, Storia di Diritto Romano, p. 215, 291. 
102 TJ, 1, 2, 9. 

103 In Maroto, o.c., n, 251. 

104 Ferrini, Pandetti, n. 17, 

105 C. 1, 11, 65, (64). 

106 C, 5, D. I. 


107 Prummer, Manuale Theologiae Moralis, (Friburgi Briscoviae, 1923), 
W; ol, ATL elds 


Principles of Privilege According to the 61 
Code of Canon Law 


DeAngelis’® is not so kind to Gratian’s definition because 
it seems to apply only to customs beyond the law, with a 
possibility of extending the definition to customs con- 
trary to the law. But it certainly does not allow for 
eustoms according to the law. 


In one place Gratian denies the validity of a parti- 
cular custom contrary to the law,’”? and in another place 
admits that a custom can abrogate laws and canons.?!° 
Alexander III acknowledged the force of custom,™! and 
Gregory IX canonized the doctrine that a custom can 
abrogate a law.’ 


The question of custom is not an easy one. In the 
universal Church much more certitude concerning the 
value of a custom can be obtained than in a particular 
diocese or church. At times it will be difficult to deter- 
mine whether or not a custom has any value. In sucha 
predicament Cardenas'*® lays down two rules which 
should give some assurance either in favor of the cus- 
tom, or against it. Cardenas says: (1) if all the people 
in a diocese are morally certain that a custom originated 
from a legitimate cause, the custom has legal value. 
Tradition of the custom could have been handed to suc- 
ceeding generations until the original time of introduc- 
tion would be forgotten. The consensus of practically 
all the people is full proof. (2) If this universal belief 
is not present, the custom is doubtful since full proof in 
testimony of a fact cannot be had. However, if the dis- 
senting portion of the community is negligible, or un- 


108 De Angelis, Praelectiones Iwris Canonict, (Romae, 1877), lib. I, tit. IV, 
ade 


109 C, 4, D.XI, dictum: Cum vero nec sacris canonibus, nec humanis 
legibus consuetudo obviare monstratur, inconcussa servanda est. 

110 C, 3, D.IV, dictum: Sicut enim moribus utentiwm in contrartum non- 
nullae leges hodie abrogatae sunt, ita moribus utentwm ipsae leges 
confirmantur. 

111 ©, 8, X, de sententia et re iudicata, II, 27. 

112 C, 11, oe de consuetudine, I, 4; Vecchiotti, oe, Lib al. cL, Saks 

113 Cardenas, Crisis Theologica, (Venetiis, 1700), disp. XXIII, ce. V, art. 
13-14, 


62 Principles of Privilege According to the 
Code of Canon Law 


worthy of belief, it can be brushed aside and the custom 
considered legitimate. 


Particular legislation concerning a privilege intro- 
duced by custom, will at times be a delicate matter. For 
example, should a custom contrary to the general law of 
the Church exist in a diocese it may be difficult, if not 
impossible to eradicate it. In such a situation a Bishop 
would far exceed his rights if he made a synodal law 
recognizing this custom. Mansi uses strong language in 
describing such a departure from the constituted order 
of procedure: nimia esset arrogantia, si Hpiscopus legem 
conderet contra legem Supervoris.* 

Still it cannot be denied that customs' contrary to the 
general law did exist and were difficult to remove. Ben- 
edict XIV‘ praises the prudence of Saint Charles Bor- 
romeo when the latter found himself in such a difficult 
position. In Milan a custom existed in regard to aliena- 
tion of ecclesiastical property. This custom was con- 
trary to the Apostolic constitutions. Saint Charles re- 
fused to legislate in this matter, but instead consulted 
Rome about the best course to pursue. An answer was 
given to Saint Charles that the custom could not remain 
in force and that the general law of the Church was 
to be followed. 

On the other hand Benedict XIV‘'*® warns against 
a hasty synodal law with a view towards eradicating a 
custom. Such action might lead to endless opposition 
to the detriment of souls. The prudent way would be 
to explain the case fully to the Holy See and abide by its 
wise disposition. 

Custom can be divided thus'!’: (a) in respect of ex- 
tent, customs are universal, general, or special according 





114 Mansi, Epitome Iuris Canonici, (Mechliniae, 1824), verb. econsuetudo. 

115 Benedict XIV, De Synodo Diocesana, (Romae, 1806), lib. IX, ce. VIII, 
n. 9; lib. XII, Cr Villar alo. 

116 Benedict XIV, o.c., lib. XI, Co Ve i 

117 Maroto, o.c., v. I, n. 250; Bouix, 0.C., Pp. 352. 


Principles of Privilege According to the 63 
Code of Canon Law 


as the custom exists in the universal Church, a province 
or diocese, or in a society; (b) in respect of the law 
itself, customs are according, contrary, or beyond the 
law; (c) in respect of the manner of usage, customs are 
judicial, or extra judicial according as the customs have 
their proper place in trials or outside of them; (d) in 
respect of time, customs are ordinary, centennial, or im- 
memorial according as the custom is of forty years dura- 
tion, one hundred years, or the time of origin forgotten. 

Only customs contrary to the law, and beyond it are 
of any importance in regard to privileges. Canon 25 says 
that the competent Superior is the only one who can give 
legal force to a custom. Thus Canon Law differs from 
Roman Law because subjects in ecclesiastical law have 
no part in making laws.’*8 The Historical School, e. g., 
Shulte, Sohm, ete., attempted to apply the principles of 
Roman Law to Canon Law, but as Wernz™® points out 
they contradicted the teaching of the Church.’ All juris- 
diction resides in the Pope, and thru him in the Bishops: 
the faithful have no legislative power. 

Tacit consent of the competent Superior suffices for 
the validity of a custom, but even legal consent such as 
is given in canons 27 and 28 is enough to make the custom 
legitimate. This was already admitted in the Decretals 
of Gregory [X.**” 

The matter, or substance of the custom must be rea- 
sonable.!= Therefore no custom, and thru it a privilege, 
can be introduced contrary to natural, or divine law,’ 
or which is expressly declared to be unreasonable. In 


118 Maroto, o.c., v. I, n. 252. 

119 Wernz, o.c., v. I, n. 188. 

120 ©. 3, X, de consuetudine, I, 4. 

121 Bellarminus, o.c., lib. IV, c. XV; Bouquillon, o.c., n. 96. 

122 ©, 11, X, de consuetudine, I, 4. 

123 Maroto, o.c., v. I, n. 252. 

124 ©. 27, §1; C. 10, 11, X, de consuetudine, I, 4; c. 30, X, de praebendis 
et dignitatibus, III, 5; Bouix, o.c., p. 364. 


64 Principles of Privilege According to the 
Code of Canon Law 


the Code every custom which is expressly reprobated is 
unreasonable.” 

Superiors are the judges of the reasonableness of a 
custom. In case of doubt, possession will argue in favor 
of the custom.’*° 

The time required by the Code for the concession of 
privilege thru custom is determined according to the re- 
spective law in the matter. Customs contrary to ordinary 
laws become legal after forty continuous and complete 
years. Customs, however, contrary to a law which con- 
tains a clause prohibiting customs do not become legit- 
imate until one hundred years are completed. Imme- 
morial customs likewise cause prejudice to the last- 
named laws.1?? 


4. Prescription as a Source of Privilege. 


Prescription is defined: Modus legitumus acquirendt 
ws vel liberationem aliquam procedens per possesstonem 
modo et tempore a legibus continuatam.’** Primarily, 
prescription is one of the legal exceptions by which good 
faith coupled with legitimate and continued possession 
supersede the rights of a preceding owner. Prescription 
has its foundation in human law, and not in natural law. 
The latter would recognize an abandoned right as always 
belonging to the owner, while the former legally dispos- 
sesses the owner and transfers the right to another. 
Prescription is justified by the elimination of the con- 
fusion whieh would result from years of unknown owner- 
ship. 

Prescription is divided into formal and causal. YFor- 
mal prescription is the right acquired after the require- 
ments of the law have been fulfilled. Causal preserip- 





125 Can. 27, § 2. 

126 De Angelis, DO Abe y likes Velie Ue 

127 Can. 27, §1 

128 Santi, Beane Iuris Canonict, (Ratisbonae, 1886), lib. II, tit. 
37.5). 





Principles of Privilege According to the 65 
Code of Canon Law 


tion consists in the actions which tend toward obtaining 
formal prescription.’ 

The qualities necessary for valid prescription must 
be considered carefully. In the first place it is essential 
to know that not every thing is subject to prescription. 
Canon 1509 names items that are not liable to pres- 
cription. For example, the privilege of exemption from 
all visitation can never be prescribed. Similarly, the 
exemption accorded religious Orders cannot be pres- 
eribed by a Congregation because the only source of this 
privilege is Apostolic concession. Good faith is neces- 
sary according to the Rule of Law possessor malae fide 
ullo tempore non praescribit.*! A just title is necessary. 
By this it is understood that transferable dominion exists. 
Possession is absolutely essential to prescription, for 
without it prescription is unintelligible.’ 

Prescription is properly understood in acquiring 
rights which, according to the common law, would belong 
to another. Thus such jurisdiction which has its sole 
source in ecclesiastical law can be prescribed by a 
elerie.°? Similarly, the jurisdiction of an Archbishop, 
or Bishop can be prescribed by a Patriarch. Such a case 
was decided by Innocent IIT in hig letter to the Arch- 
bishop of Turo.“* Again Innocent III decided in favor 
of a prescription in the case of delinquent clerics. The 


129 Santi, o.c., le. n. 4. 

130 Can. 1509. Praescriptioni obnoxia non sunt: 1. Quae sunt iuris divins 
sive naturalis sive positivt; 2. Quae obtineri possunt ex solo privilegio 
apostolico; 3. Iura spiritualia, quorum laici non sunt capaces, st 
agatur de praescriptione in commodum laicorum; 4. Fines certi et 
indubti provinciarum ecclesiasticarum diocesiwm, paroeciarum, vicari- 
atuum apostolicorum, praefecturarum apostolicarum, abbatiarum vel 
praelaturarum nullius; 5. Eleemosynae et onera Missarum; 6. Benefi- 
cium ecclesiasticum sine titulo; 7. Ius visitationis et obedtentiae, ita 
ut subditi a nullo Praelato visitart possint et nullt Praelato tam 
subsint; 8. Solutio cathedratict. 

131 RJ. 2 in VI. 

132 RJ. 3 in VI. 

133 Jurisdiction received from divine law is not subject to prescription: 
ean. 1509, n. 1. 

134 ©, 9, X, de officio wudicis ordinarit, I, 31. 


66 Principles of Privilege According to the 
Code of Canon Law 


Pope writes that Bishops are to judge their subjects 
unless a custom or privilege rule otherwise.’ 


The time required to prescribe a privilege against 
the rights of the Holy See is one hundred years.*** This 
doctrine was already taught by Gratian: Venerandae 
Romanae leges, divinitus per ora principum promulga- 
tae, reum evus prescriptionem non nist per centum annos 
admitiunt.3* Tnnocent III took up the same principle,”* 
and Boniface VIII made a similar ruling.” 


Thirty years are sufficient to prescribe against the 
rights of a moral person inferior to the Holy See.**° 


Prescription of the rights of a Bishop, and indeed 
of any physical person, is not included in canon 1011. 
Another canon (1508) says that the respective law of 
the nation is to be followed. Should no law be found to 
cover the case, refuge will have to be taken in the law 
made for similar cases.141 Perhaps thirty years would 
suffice for prescription against the rights of a Bishop. 
Vermeersch holds this opinion.’*? But this interpreta: 
tion does not agree with another canon.’ While it is 
true that custom and prescription are not the same, still 
the latter is a kind of private custom. An individual 
person cannot induce a custom, but he can prescribe.** 
Now in canon 27, § 1, it is stated that a period of forty 
years is necessary to act legally against an ecclesiastical 
law. Jurisdiction of Bishops come under this head. 
Therefore it seems that forty, and not thirty years are 


135 ©, 13, X, de foro competenti, II, 2. 

136 Can. 1511, § 1. 

1387 ©. 17, C, XVI, q. 3. 

138 C, 13, 14 X, de praescriptiontbus, II, 26; c. 4, X, de confirmatione utilé 
vel wnutili, II, 30. 

139 C. 2, de praescriptionibus, II, 13 in VI. 

140 Can. 1511, § 2. 

141 Can. 20. 

142 Vermeersch-Creusen, o.c., v. I, n. 130. 

143 Can. 27, $1. 

144 Cicognani, 0.¢., p. 282. 


Principles of Privilege According to the 67 
Code of Canon Law 


necessary for prescription.’** Besides a Bishop is not 
considered a moral person in regard to his personal juris- 
diction, but only in relation to the rights of his diocese 
which he embodies in his only own person. Hence it 
seems to be incorrect to apply prescription against moral 
persons to prescription against individual rights of a 
Prelate. 


0. Presumption of Privileges. 


Can. 63, § 2. Possessio centenaria vel immemorabilis 
inducit praesumptionem concessi privilegii. 


Presumption is defined in canon 1825, $1. Praesump- 
tio est rei incertae probabilts coniectura. The same canon 
divides presumptions into praesumptiones iuris, and 
praesumptiones hominis. The former are determined by 
law: the latter are formed by a judge. Praesumptio 
juris is further divided into praesumptio wuris simplici- 
ter, and praesumptio iuris et de wre. 

The value of the several classes varies. Legal pre- 
- sumptions carry great weight, and must be accepted by 
all within the proper sphere of their content, and accord- 
ing to the probative force assigned to them by law. Thus 
praesumptio iuris simpliciter furnishes a basis for form- 
ing a judgment but it admits both direct and indirect 
contrary proof: pracsumptio iuris et de wure cannot be 
attacked directly but is assailable only in so far as its 
foundation may be destroyed.*® Both of these presump- 
tions have objective force in law. A judge is not free 
to admit or reject them. Thus the testimony of two or 
moro witnesses, with all the qualifications demanded in 
canon 1791, § 2 must be accepted as sufficient proof." 

Praesumptio hominis will have an indefinite value 
according to the reasons proposed by each judge. This 





145 Cocchi, o.c., v. I, n. 117. 
146 Can. 1826. 
147 Noyal, o.c., n. 512. 


68 Principles of Privilege According to the 
Code of Canon Law 


value is entirely personal and may mean nothing at all 
to another judge. Thus a judge secundae mstantiue 
may reject all the presumptions of the court from which 
the appellation came. , 

The legal foundation for the value of presumption, 
at least in regard to privileges, is based on the tolerance 
of the legislator. Benedict XIV takes occasion to ex- 
amine this point in discussing the administration of the 
Sacrament of Confirmation by Greek priests. The emi- 
nent canonist writes that the administration of the Sacra- 
ment of Confirmation by Greek priests is not expressly 
condemned and therefore it is to be considered valid 
ob tacitam saltem privilegium a Sede Apostolica illis con- 
cessum: cuius quidem privilegu praesumptionem inducit 
upsamet conniventia, et tolerantia Romanorum Pontifi- 
cum, qui praedictum Graecorum morem scientes non con- 
tradixerunt, nec unquam iulum damnarunt 3 

The probative force of a presumption relative to a 
privilege was admitted by Pope Nicholas I in his letter to 
the Archbishop of Bourges. The Pope writes that no 
Prelate has a right to arrogate another’s jurisdiction, 
but that custom can change some of the canons giving 
rise to privileges.'* 

Innocent III likewise admitted the force of pre- 
sumption in another dispute concerning alleged usurpa- 
tion of jurisdiction by means of custom and prescrip- 
tion.° Alexander III similarly allowed presumption in 
the matter of tithes.*? 

A presumption that a privilege has been conceded 
relieves the grantee of the burden of proof. Mere denia! 
of the privilege cannot be sustained, but the presumption 
itself can be dissolved if it should be proved that in point 
of fact the disputed privilege had not been conceded. 





148 Benedict, XIV, o.c., lib. VII, c. TX, n. 3. 

MOL BON TX gg os | 

150 C. 13, X, de foro competenti, II, 2; ce. 18, X, de praescriptionibus, II, 26. 
151 C, 4, X, de praescriptionibus, II, 26. 


Principles of Privilege According to the 69 
Code of Canon Law 


The possession essential to presumption must be 
real. Consequently, something held in trust cannot give 
rise to presumption. The object in possession may be 
something material concerning which a privilege can be 
granted, or something spiritual such as a right, or a 
benefice. 


CHAPTER V 
INTERPRETATION OF A PRIVILEGE. 


An interpretation of a privilege is the explanation 
of the terms of a privilege. It supposes a doubt concern- 
ing the terms of the favor granted. Strictly speaking, 
declaration is not the same as interpretation for the for- 
mer merely states what is contained in the grant and 
does not suppose it to be anything but clear. Yet the 
non-restrictive and non-extensive interpretation demand- 
ed in a privilege’ can be called declarative interpreta- 
tion. 

Interpretation can be divided in several ways. In 
respect of its application, it is extensive, or comprehen- 
swe. An extensive interpretation enjoys great import- 
ance in matters of law. In order to have extensive in- 
terpretation, it is necessary not only to go beyond the 
actual verbal meaning of the law, but also to depart 
from the mind of the legislator.2. However, such inter- 
pretation must not be contrary to the mind of the legis- 
lator. Reasons similar to the ones supporting a law 
allow for its extension to cases not included in the law 
itself. Innocent III thus explains his right to transfer 
Bishops-elect.? 

In interpreting privileges extensive interpretation 
is of no value. A privilege concedes a special faculty. 
It is an extraordinary provision and consequently can- 
not be used as an example. Pope Alexander III wrote: 
Temerarvum est et indignum, aliquem sibi sua auctori- — 
tate praesumere, quod Romana ecclesia alicui, certa ra- 





1 Can. 67. 

2 Reiffenstuel, o.c., lib. V, tit. XXXII, n. 93; Ferraris, 0.0. v. privi- 
legium, art, 2, n. 20. 

8 ©. 2, X, de translatione Episcopi, I, 7. 


[79] 


Principles of Privilege According to the 71. 
Code of Canon Law 


tione inspecta, singularibus voluit beneficiis indulgere.4 
Boniface VIII sponsored identical legislation.® 

However this does not hold for extension to possible 
consequences of a privilege. For example, if a chapel 
is built within the confines of a parish and enjoys the 
privilege of having mass celebrated there, voluntary of- 
ferings can be accepted in that chapel. This might be 
considered more in the nature of comprehension than 
extension. 

Comprehensive interpretation is admissible in privi- 
leges. Such an interpretation conforms to the mind of 
the legislator rather than to his words.? Certe noverit 
ille, qui intentionem et voluntatem alterius variis verbis 
explicat, quia non debet aliquis verba considerare, sed 
voluntatem et intentionem, quia non debet intentio verbis 
deservire, sed verba intention.2 Gratian in his com- 
mentary to this canon reduces the text to an axiom: 
Intentio non debet deservire verbis, sed verba intentioni.® 
Thus, by means of comprehensive interpretation, a privi- 
lege conceded to a hospital includes those who work there, 
or, a privilege to say mass during an interdict includes 
the server, ete. 

In respect of the source of the interpretation, it is 
authentic, usual, or doctrinal. The first is obtained by 
express declaration of the Superior who conceded the 
privilege. The second is had thru custom. The third 
secures its force from the opinions of authors.’° The 
immediate and practical value of a doctrinal interpreta- 
tion depends upon the reasons adduced by each author. 


4 C. 9, X, de privilegiis et excessibus privilegiatorum, V, 33; cf. c. 8, 16, 


5 R. J. 28 in VI: Quae a iwre communi exorbitant, nequaquam ad con- 

sequentiam sunt trahenda; R. J. 74: Quod alicui gratiose conceds- 
tur, trahi non debet ab aliis in exemplum. 

6 Tuschus, o.c., v. VI, lit. P, concl. 734, n. 1. 

7 Ferraris, o.c., art. ¢., n. 21. 

SB Oyit, C. AXTT, q. 5. 

9 Dictum Gratianum. 

10 Ferraris, o.c., art. c., n. 22. 


72 Principles of Privilege According to the 
Code of Canon Law 


An interpretation may also be strict, or broad. In 
no case can the words of the document be restricted to 
less than the meaning of the words allow, nor extend be- 
yond the natural and juridical sense of the words. Both 
strict and broad interpretation have as their sole sources 
custom and the opinion of authors. 


Canon 67. Privilegium ex ipsius tenore aestiman- 
dum est, nec licet illud extendere aut restringere. 


Canon 68. In dubio privilegia interpretanda sunt 
ad normam can. 50; sed ea semper adhibenda interpreta- 
tio, ut privilegio aucti aliquam ex indulgentia conceden- 
tis videantur gratiam consecuti. 


Canon 70. Privilegium, nisi alind constet, censen- 
dum est perpetuum. 


Before entering upon the discussion of the rules 
which must guide the interpretation of a privilege, it 
is well to lay down a principle which is anterior to all 
norms in this matter. This principle concerns the com- 
petence of interpreters. In the first place the legislator, 
who is alone capable of giving an authentic interpreta- 
tion of a privilege, is the most competent to interpret. 
His will is the cause of the privilege and he is the best 
judge of his own benevolent intentions.1! Innocent ITI, 
in writing to the doctors of Bologna summarizes in one 
short sentence the absolute competence of the legislator. 
He writes: Unde ws produt, interpretatio quoque pro- 
cedat.* In regard to Apostolic privileges, Pope Innocent 
III is even more explicit: cum super privilegtis sedis 
Apostolicae causa vertatur, nolumus de ipsis per alios 
audicart.* The successor of the actual legislator is 





11 Herincx, 0.c., disp. 4, q. 7, n. 87; Tuschus, o.c., v. VI, lit. P, conel. 737, 
n. 1-3; Fagnanus, 0.c., De verborum significatione, c. olim, nD. sa 
De Meester, 0.¢., TN. 307. 

12 C, 31, X, de sententia excommunicationts, V, 39, 

13 C, 12, x de wdictis, II, 1. 


Principles of Privilege According to the 73 
Code of Canon Law 


equally competent to give an authentic interpretation of 
a privilege. Is qui in tus succedit alterius, eo wre, quo 
alle utc debebit.14 

After the legislator himself, or his successor, those 
who are learned in the law are the best interpreters. 
But their interpretation is merely doctrinal, and depends, 
as has already been observed, ‘on the reasons proposed. 
Hixtrinsic authority is likewise of some weight and, gen- 
erally speaking, the judgment of Superiors can be fol- 
lowed in interpreting a privilege. Thus regulars can 
follow the interpretation of their Prelates with a safe 
conscience.”® 

Obviously, when a privilege is entirely free from 
ambiguity it needs no interpretation. The purpose of 
interpretation is to discover what the legislator intends 
to concede, and hence, interpretation could have no place 
in a privilege which is itself sufficiently clear. A re- 
examination of the document containing a privilege may 
be necessary in order to find the exact intentions of the 
legislator. Thus the Decretals contain the remarks of 
Alexander III in reference to the many privileges of 
the Templars: totum ex wmspectione privilegiorum suo- 
rum, plenus advertere potes, et secundum quod inveneris, 
ita observes.® The same Pontiff writes to one of his 
legates: Inspicienda sunt ergo ipsarum ecclesiarum prwvi- 
legia, et ipsorum tenor est diligentius attendendus.™ 

As a corollary from these texts it follows that both 
extension and restriction are forbidden. Extension, as 
noted above, is entirely without application in privileges. 
‘This is so true that a person with an even better reason 
for enjoying a privilege would nevertheless not possess 
it without specific concession.** The reason is that all 


14 RJ. 46 in VI. 

15 Herinex, 0.c., l.c. 

16 C. 7, X, de privilegiis et excessibus privilegiatorum, V. 33. 

17 C. 8, X, de privilegiis et excessibus privilegiatorum, V. 33. 

18 Herinex, o.c., disp. 4, q. 7, n. 91; Palao, o.c., tr. 3, disp. 4, p. 13, n. 1; 
Amort, o.c., lib. V, tit. XXXIIT, n. 16; Sanguineti, o.¢c., n, 139, 


74 Principles of Privilege According to the 
| Code of Canon Law 


the power and efficacy of a privilege come from the will 
of the competent Superior.!® Alexander III thus decided 
the matter in respect of exemption from tithes: licet de 
benignitate sedis apostolicae sit vobis indultum, ut de 
laboribus vestris, quos propriis manibus vel sumptibus 
colitis, nemini decimas solvere teneamim; propter hoc 
tamen non est licitum vobis cuilibet decumas de terris 
vestris subtrahere, quas alits traditis excolendas.*® Inno- 
cent III gave a similar decision in regard to exemption 
from possible penalties. The canons attached to the 
chapel of the Duke of Burgundy enjoyed the privilege 
that no Archbishop or Bishop could fulminate a decree 
of excommunication, interdict, or suspension against any 
one of their number. This privilege was a local and 
personal one. The canons enjoyed exemption from pen- 
alties not in their own right entirely, but by reason of 
their service in the ducal chapter. Nevertheless, some 
of the canons who rendered service in parish churches 
refused to submit to penal sentences inflicted because of 
crimes commited while in such parish service. Upon the 
Bishop’s appeal to Rome, the Pope replied: Quocirca 
fraternitati presentium auctoritate mandamus, quatenus, 
m quantum exempti sunt evusdem ratione capellae, apos- 
tolicis privilegus deferas reverenter; sed, in quantum 
ratione parochiahum ecclesiarum. vel alias iurisdictionem 
tuam respicere dignoscuntur, officia tui debitum in 
eosdem libere prosequaris.*1_ The Council of Trent cited 
this letter and confirmed it.** Similar extensive inter- 
pretations were rejected by Innocent IIT in his letter to 
the Bishops of Auson and Klide,” and again in the gen- 
eral council held during his reign.** Boniface VIII found 
it necessary to lay down the exact extent of exemption 
19 Ballerini, o.c., v. I, n. 391, I. 

20 C, 11, X, de decimis, primttiis et oblationibus, ITI, 30. 

21 C, 16, de privilegiis et excessibus privilegiatorum, V, 33 in VI. 

22 Sess. "XXIV de reformatione, ¢. 11. 


23 C. 18, 19, X, de privilegiis et excessibus privilegiatorum, Vi835 
24 C, 24, x, de privilegits et excessibus privilegiatorum, V, 33, 





~ 


Principles of Privilege According to the 
Code of Canon Law 


so that it would not be so flexible as to nullify all juris- 
diction of the Bishop.” 


Benedict XIV, in his constitution Apostolica Indulta, 
August 5, 1744, calls attention to the abuses arising from 
the Pree interpretation of the Bulla Cruciatae.*® He says 
that these abuses are foreign to the mind and the will of 
the Pontiffs who made the concessions. Accordingly, 
he finds it necessary to make precise regulations cover- 
ing the provisions of this already ample privilege. The 
Sacred Congregation of Rites was obliged to give sim- 
ilar decrees. For instance, a feast celebrated in Spain 
could not be extended to Portugal. *7 Again the privi- 
lege of celebrating certain feasts conceded to the Arch- 
diocese of Cincinnati could not be extended to other 
dioceses altho they used the same Ordo.°8 

Pope Pius X adhered to the same principle in his 
motu proprio of February 21, 1905. This motu proprio, 
Inter multiplices, defined the privileges of the Protono- 
taru, and precisely set the limits of place, time, and 
function in which these privileges could be used.” 

Restriction of a privilege is also forbidden. This 
prohibition does not, ordinarily, refer to the grantee. 
Since the entire use of at least strict privileges*® is left 
to the grantee, he can use all the privilege, or only a 
part as he sees fit. Everyone else, however, is obliged 
to allow-full use of the privilege, and cannot curtail the 
legitimate use of the privilege in any way. Indirect re- 
striction is also forbidden, for the reason that while pre- 
serving the letter of the privilege, it actually limits the 
free use of the grant. Honorius III expressly forbade 
this indirect restriction of a privilege.** 





25 C. 9, de privilegits et excessibus privilegiatorum, V. 33 in VI. 
26 Fontes, v. I, n. 344. 

27 Dec. Auth. S.B.C., n. 179 ad 3. 

28 Coll. n. 1592. 

29 Dec. Auth. 8.R.C., n. 4154, n. 80. 

30 As distinct from ‘privileges accorded a state, or a community. 
31 C, 26, X, de privilegits et excessibus privilegiatorum, V, 33. 


~! 
Os 


Principles of Privilege According to the 
Code of Canon Law 


Rules governing the interpretation of privileges. 


FunpaMENTAL Rute. The fundamental rule for the 
interpretation of privileges can scarcely be better ex- 
pressed than in the way it is found in the Code: Ha 
semper adhibenda interpretatio, ut privilegio aucts ali- 
quam ex mdulgentia concedentis videantur gratiam con- 
secuti.*? If the essence of a privilege consists in the 
concession of a favor not possible of attainment under 
the law, then, every interpretation must preserve this 
element inviolate.** A privilege would be useless if it 
were hedged in with so many formalities that it would 
result in something attainable in law. For instance, if 
a priest obtains the privilege to celebrate mass on a 
portable altar, his privilege must mean per modum habi- 
tus. It cannot mean for a few occasions, e. g., as long 
as possible infirmity may last, because he would not 
need a privilege for this. The common law allows a 
Bege to permit such celebration of mass per modum 
-actus.*4 


66 


THE FORCE OF ““WORDS’’ IN GENERAL, AND CONSEQUENTLY, 


IN A PRIVILEGE. 


Words are signs.** They give testimony of thought, 
and show the disposition of will. From their nature, 
words must serve the intention and vice versa. Barbosa 
compares words to the body and the mind to the soul. 
‘The former depends upon the latter for its activity.** 
Ordinarily words will show exactly what is present in 
the mind. This is the reason why words must be inter- 
preted according to their proper meaning. In a privi- 
lege they have the same function. 7 


32 Can. 68. 

83 St. Alphonsus, o.c., lib. I, app. IT, c. I, n. 6; Suarez, o.c., lib. 8, ¢. 28, 
ets Vermeersch- Creusen, 0.0.5°0 170: 132; DeMeester, 0.C., n. 307. 

34 Can. 822, § 4. 

35 Grandelaude, Breviariwm Phil. Schol., (Parisiis, 1878), t. I, p. I, n. 27. 

36 Barbosa, Tractatus varii, Axiomata, CCXXIL, n, 3. 


SS 


a 





Principles of Privilege According to the ih 
Code of Canon Law 


It happens at times that words are not precise and 
do not definitely convey the thought which they should 
express. Again, words which were once clear and unmis- 
takable may lose these characteristics and take on an 
indefinite meaning. In order to assist in arriving at a 
practical conclusion in the interpretation of a given docu- 
ment the following rules are proposed. The general rules 
offered will govern all cases; the particular rules must 
be applied according to species of favor conceded. 


GreneraL Rutes. I. Briefly the first general prin- 
ciple of interpretation of a privilege may be expressed 
thus: Privilegium tantum valet, quantum sonat. The word- 
ing of a privilege is to be taken in its natural, or in its 
juridical sense.*” This is the ordinary rule. However, if 
ia word taken its proper meaning causes injustice to an- 
other, the legislator is not presumed to have used the 
word in that sense. Similarly, if the wording of a docu- 
ment shows clearly that a word was used improperly, 
this improper meaning evidently is not the idea which the 
legislator wishes to convey. Again, if the exact meaning 
of a word would render the privilege useless, manifestly 
the legislator does not intend it to have such a meaning.*® 
The juridical meaning of a word is to be preferred to 
the natural meaning, if the two should not coincide.” 
(The practice of the respective curia from which the docu- 
ment emanated is to be followed. Hence a Papal privi- 
lege is to be interpreted according to the use of the word 
in the Papal curia, and an Episcopal privilege according 
ito the use of the word in the Episcopal curia. 

Il. If the rescript contains obscure or uncertain 
words, the doubt can be solved (a) by appealing to the 


87 Suarez, o.c., lib. 8, c. 28, n. 16; De Camillus, Instituttones Iuris Canonici, 
(Parisiis, 1868) lib. II, c. I, art. I, n. VI. 
88 Schmalzgrueber, o.c., lib. V, tit. XXXIII, n. 120; Fagnanus, o.c., 
_de privilegiis et excessibus privilegiatorum, c. Quod nonnulla, n. 28; 
Ballerini, o.c., v. I, n. 391, I. 
39 Schmalzgrueber, o.c., lib. V, tit. XX XIIT, n. 121. 


78 Principles of Privilege According to the — 
Code of Canon Law 


petition, (b) by ascertaining how the privilege was inter- 
preted in the beginning, (c) by considering the matter of 
the privilege, (d) by considering the quality of the privi- 
lege.*° 

(a) In granting his rescript, the legislator, or Su- 
perior is influenced by the petition offered. Hence ordi- 
narily the Superior can reasonably be understood to 
errant the privilege in the same fashion in which it was 
requested.*! Should a privilege be asked for to say mass 
on board ship, and the petition state that the request 
covers the period of two or three months necessary for 
an extended voyage, the legislator, if he accedes to the 
request, doubtless wishes to grant the privilege for so 
long atime. Similarly, if the request is made for a single 
trip to Kurope, it would mean a round-trip. 

In a motu proprio privilege, a petition is not the 
cause of the rescript altho it may be its occasion. Doubt- 
ful expressions occurring in such a rescript would have 
to be judged according to the following principles. 

(b) In the course of time doubts may arise con- 
cerning words which at first seemed to be clear. In such 
a case it will be necessary to see how the privilege was in- 
terpreted in the beginning.** The immediate beneficiaries 
were in an excellent position to study the mind of the 
legislator and weigh all the circumstances incident to 
the issuance of the privilege. For example, if a privi- 
lege of having mass celebrated in a private oratory exists 
for some years, and now a doubt should arise about the 
admittance of certain people, sufficient security can be 
obtained by learning what the original grantee did. 

(c) The substance of a privilege can very often 
dispel a doubt concerning the terms of a privilege. 





40 Grandclaude, o.c., lib. V, sec. 3, n. 1. 

41 Herinex, 0.c., disp. gM Oy a 88; Palao, o.c., tr. 3, disp. 4, p. 9, n. 1; 
Suarez, o.c., lib. 8, c. 28, n. 9. 

42 Suarez, 0.c., i.e. 

43 Suarez, 0.C., 1.6, 


Principles of Privilege According to the 79 
Code of Canon Law 


Along some lines the legislator is accustomed to be gen- 
erous, and along others not so favorable. 

(d) The law to which a privilege might refer can 
also aid in interpreting a privilege. Privileges contrary 
to the law must be interpreted strictly :** privileges be- 
yond the law can receive a broad interpretation. 

Most of these suggestions are intrinsic to the re- 
script itself. Another, but an extrinsic guide might be 
added. Privileges granted to other persons than the 
immediate grantee can also serve as a source of inter- 
pretation.” Ina given set of circumstances, the legis- 
lator is accustomed to grant privileges in the same way. 
Consequently, if one privilege seems obscure, it could 
be interpreted by reference to other privileges granting 
the same favor. Yet this means of interpretation may 
be precarious rule to follow at times since any warrant- 
able circumstance may influence the legislator to con- 
cede his favors more or less generously. Prudence will 
demand a minute examination of both privileges in order 
to use similarity as a guide of interpretation. 

Lastly, a privilege must not be interpreted in such 
a way that it becomes burdensome to the grantee. An 
interpretation of this kind would be more of an onus 
than a favor.*® In regard to all the suggestions given 
above, the chief element of a privilege must be kept in 
mind. A privilege grants a concession. All interpreta- 
tions must preserve this element. 


ParticuLAR RULES. Besides the general rules out- 
lined above, a particular rule can be laid down for favor- 
able privileges, and another rule for odious privileges. 

I. Favorable or gracious privileges are privileges 
which cause no injury to common law, or prejudice to a 
third party. Numbered among such privileges would be 
44 Cf. canons 19, 50, 85. 


45 Suarez, o.c., l.c. 
46 Craisson, o.c., v. I, n. 167. 


80 Principles of Privilege According to the 
Code of Canon Law 


indulgences, but not necessarily every kind of privilege 
bevond the law. The substance of a favorable privilege 
may be any kind of favor, material or spiritual. Since the 
favor alone is concerned, without reference to anything 
else, it receives a broad interpretation. One of the Rules 
of Boniface VIII" supplies the foundation for such broad 
interpretation: favores convenit ampliari. The word 
convent is apt. A legislator should show himself benefi- 
cent whenever possible. Concessions that cannot do 
any harm go far toward conciliating minds which are 
not always tractable. Remunerative privileges, for in- 
stance, exhibit a sense of appreciation which may in- 
spire further effort. Therefore, the widest possible inter- 
pretation is to be given to such favors, provided, of 
course, the interpretation remains within the proper 
meaning of the words. 

Motu proprio privileges, even if they are against 
the common law, are to be interpreted widely. The rea- 
son is that the legislator, knowing the full content of 
common law, grants a concession which he could restrict 
if he desired. Since he does not restrict the terms of 
the privilege, he is presumed to incline toward a broad 
interpretation of the favor he has granted.*® 

Il. Odious privileges regularly receive a strict in- 
terpretation.*® <A privilege can be odious in two ways. 
It may derogate from a law, or a custom; or, it may 
prejudice the rights of a third person. 

Laws are for the common good. Hence any injury 
to a law, is an injury to the common law and therefore 
to ba restricted as much as possible.*° It will not avail 
to object that a privilege contrary to the law is a favor. 


S75 Th, aliel Oa Vas 

48 C. 23, de praebendis et dignitatibus, III, 4 in VI; Suarez, o.c., lib. 8, 
G.tets De Ge 

49 Grandclaude, o.c., lib. V, sec. 3, n. 3; Makee, o.c., v. I, n. 317. 

50 Herincx, o.c., disp. 4, q. 7, n. 89; Fagnanus, o.c., de privilegiis et 
excessibus privilegiatorum, ¢. Quod nonnulla, n. 26. 


Principles of Privilege According to the 81 
Code of Canon Law 


While this is true in regard to the grantee, nevertheless 
such privileges are odious in respect of the law itself.*! 
Since the law is to be favored more than any advantage 
aceruing to a particular person as a result of an inter- 
pretation of his privilege, it follows that such an excep- 
tion to the law must be interpreted in a way that the law 
ean least suffer.°? However, as Reiffenstuel®* observes, 
and the Code itself demands, the essential note of a 
privilege must always be preserved. 

Prejudice of rights can be considered in regard to 
the legislator himself whose rights are curtailed, or in 
regard to a third person who might suffer injury. 
Against the rights of the legislator a wide interpreta- 
tion is allowed because he is believed to yield his rights 
according to the stipulations of the privilege. Besides, 
prejudice of this kind is almost intrinsic to every con- 
cession.** An exception requiring strict interpretation 
must be made in favor of privileges granted ab Ecclesia 
Romana. Prejudice of the rights of the legislator is 
never presumed here. 

Prejudice offered to the rights of a third person is 
always injurious, and therefore to be minimized as far 
as possible.*® Odia sunt restringenda.”’ Thus Boniface 
VIII in restoring a benefice demanded that it be con- 
ferred without prejudice to the former incumbent.’® The 
same Pontiff is explicit in dealing with the fruits of a 
benefice. The beneficiary does indeed enjoy the fruits 
of his benefice, but other possible beneficiaries, either by 
law, or by custom or privilege must be taken care of: 
Intentionis nostrae nequaquam eaistit, si fructus huus- 
51 Suarez, o.c., lib. 8, ¢. 27, n. 2. 

52 ©. 8, X, de consuctudine, I, 4; Suarez, o.c., lib. 8, ¢. 27, n. 5. 
53 Reiffenstuel, o.c., lib. V, tit. XXXIIT, n. 137. 

54 Suarez, o.c., lib. 8, c. 27, n. 4. 

55 Fagnanus, o.c., de verborum significatione, c. olim, n. 15-17. 
56 Terraris, o.c., v. privilegium, art. 2, n. 28. 

67 R. J. 15 in VI. 


58 ©. 8, de rescriptis, I, 3 in VI; ef. c. 15, X, de officio et potestate iudicts 
delegatt, I, 29. 


82 Principles of Privilege According to the 
Code of Canon Law 


modi, ecclesiae tuae fabricae vel alteri usui, seu cuicum- 
que singulari personae de speciali consuetudine, privi- 
legio vel statuto forsitan debeantur, quod eis per con- 
cessionem ipsam, nisi hoc expresse caveatur im ea, pra- 
eiudicium aliquod generetur.”® 

The rule minimum est sequendum is true in most 
cases. Fagnanus wisely says: privilegium cwviliter, et 
temperate est intelligendum, ita ut quanto minus fierr 
possit, uri alieno praeiudicet. 


Exceptions to the particular rule concerning 
odious privileges. 


An exception in regard to odious privileges can be 
made in favor of a community, or a pious cause, or even 
of a State. Because of the importance of the work which 
the beneficiaries perform, compensation for the injury 
offered the law will be had.” 

While it is true that the rights in danger of being 
prejudiced by the use of odious privileges come from the 
legislator, and depend upon his will for their conser- 
vation, yet, ordinarily, these rights can hardly be con- 
sidered subject to prejudice unless a specific mention to 
that effect is made. Such specific mention would be pres- 
ent in a privilege granted ex certa scienta. Undoubtedly 
this kind of a privilege would receive a wide interpreta- 
tion even if the rights of a third party were prejudiced. 
The reason is evident. A privilege granted ex certa 
sctentia is conceded with full knowledge of the cireum- 
stances, not only in connection with the grantee, but also 
in regard to possible restrictive consequences of inter- 





59 C. 10, de rescriptis, I, 3 in VI; cf. c. 24, de praebendis et dignitatibus, 
EN Ay aaa 

60 R.J. 30 in VI. 

61 Fagnanus, o.c., de verborum significatione, c. olim, n. 18. 

62 St. Alphonsus, o.c., lib. I, app. II, c. I, n. 8; Suarez, o.c., lib. 8, ¢. 27, 
n. 7; Grandclaude, o.c., lib. V, sec. 3, n. 1; D’annibale, o.c., v I, 
n. 228; Ballerini, o.c., v. I, n. 391, IL. 


Principles of Privilege According to the 83 
Code of Canon Law 


ested persons. Similarly, a privilege, motu proprio pro- 
vided it contain the proper clauses, receives a wide inter- 
pretation even if thru it a third person’s rights are cur- 
tailed. 


Perpetuity of a Privilege. 


Finally, a privilege is considered to be perpetual 
unless it is proven to be otherwise. Either the document 
itself will show the temporary force of the privilege, or 
the duration of the privilege will be determined at the 
time it is given vivae vocis oraculo. If in neither case 
a stipulation is made as to definite time of cessation, the 
privilege must be considered to be perpetual. Innocent 
IIT decided this in a response to the Archbishop of Lon- 
don. A. predecessor of the incumbent Ordinary had 
granted a privilege to the monks of All Saints. No stipu- 
lation of time was made. The Archbishop entreated 
Rome to declare whether or not this privilege could con- 
tinue. The Pope replied thus: Si decimarum dlarum 
remissio facta exstitit secundum canonicas sanctiones, 
-praedecessor tuus imdefinte decimas episcopales mon- 
asterio remittendo, quum nihil exceperit et poterit exce- 
pisse, ac in beneficiis plenissima sit imterpretatio adhi- 
benda, nec debeat una cademque substantia diverso vwure 
censeri, intellexisse videtur non solum de decvmis posses- 
sionum illius temporis, sed futurr. 

Boniface VIII incorporated a similar declaration 
in his rules of law. Rule 16 reads: Decet concessum a 
principe benefictum esse mansurum. It is necessary, 
however, to note that the concession must have actually 
been made, else it would fail of realization if the grantor 
lost his power.” 

The motive of a privilege will influence its stability.” 

63 Herincx, o.c., disp. 4, q. 7, n. 90. 
64 CO. 22, X, de privilegiis et excessibus privilegiatorum, V, 33. 


65 ©. 36, de praebendis et dignitatibus, III, 4 in VI. 
66 DeMeester, o.c., n. 305, 


84 Principles of Privilege According to the 
Code of Canon Law 


if a privilege were granted irrespective of its continued 
existence, the privilege would be in force even after the 
motive ceased. But if the continuance of the motive 
were taken into consideration, the privilege would be 
suspended when its motive ceased. This shows the sim- 
ilarity of certain privileges and certain dispensations in 
actual operation.” 

Personal privileges even if they are relatively per- 
petual cease with the death of the grantee. Real privi- 
leges, however, pass to heirs and successors.®© 
67 Grandclaude, o.c., in regulas Sexti, nu. 16. 


68 DeMeester, o.c., l.c., Cum rei inhaereat, transit hoc privilegium ad 
heredes et successores in eadem re. 


CHAPTER VI 
USE OF A PRIVILEGE. 


In discussing the use of a privilege a double aspect 
of the question must be considered. The use of a privi- 
lege can be viewed in relation to the privileged person 
himself, or in relation to all others who must respect 
the legitimate use of the privilege. While this obliga- 
tion is an effect of the concession, its prime force is 
rather to be sought in that principle of natural law 
whereby no one is allowed to interfere with the rights 
iof another. 

Consideration of the use of a privilege in respect of 
the grantee, easily resolves itself into a study of the 
time when a privilege may be used, and of the place 
where it may be enjoyed. Each division may be further 
subdivided. The element of time may be studied as per- 
-petual or temporary, while the element of place may be 
considered in regard to the territory of the Holy Father, 
or of a Bishop. 

Such favorable laws which are called privileges in 
a wide sense take effect at the time designated by the 
legislator. They need promulgation like any other law 
but they do not require acceptance. Hence the legitimate 
fruition of such a privilege begins when the law takes 
effect, continues as long as the law exists, and ceases 
when the law is revoked. 

Strict privileges, on the other hand, are not of them- 
selves laws. Consequently, they need no promulgation. 
Ordinarily the privilege does not take effect until the 
beneficiary accepts the grant. Formal acceptance is not 
essential. It suffices to have made a petition either in 





1 Maroto, o.c., v. I, n. 30°, 


[ 85 ] 


86 Principles of Privilege According to the 
Code of Canon Law 


person, or by proxy. As soon as the petition is granted, 
the privilege can be used. A priest who fears that total 
blindness is coming upon him can ask the Holy See for 
the privilege of celebrating the votive mass of ‘the 
Blessed Virgin every day. Some time will be consumed 
in forwarding the petition to Rome. More time will be 
consumed there in investigation. Should the privilege 
be granted, it can be used validly at the moment of con- 
cession. It would not be necessary for the priest form- 
ally to accept the rescript when it is sent to him. Virtual 
acceptance is already had in the petition. Another case: 
a diocesan institute wishes to gain a plenary indulgence 
on certain specified days. The Bishop in his ad limina 
visit asks the Holy Father for the privilege. Immediately 
upon the concession of the Holy Father made thru the 
proper channels,” the institute receives its privilege. 

The use of a privilege continues according to the 
stipulations of the grant. If the privilege is granted 
without reference to time, it can be used forever. But if 
a certain length of time is incorporated into the grant, 
the use of the privilege is valid until this time lapses. 
Besides the limitation of time, the specification of a cer- 
tain number of cases can restrict the use of the privilege. 
Should the number be exceeded, the grantee would be 
acting invalidly.? 

In regard to the place where a privilege may be used 
two general and self-evident principles can be proposed: 
(a) an absolute privilege can be used in every place in 
ithe territory of the grantor; (b) a privilege restricted 
to a certain place, or forbidden to be used in certain 
localities can only be enjoyed within the limits of the 
grant. 


granted by the Pope can be enjoyed everywhere. The | 





2 Can. 258, § 2. 
8 In the internal forum, acts placed through inadvertence, elapse tempore 
vel exhausto numero caswwm, are valid; can. 207, §$ 2, 


IF’'rom the first principle it follows that a privilege 


a a ~ 


Principles of Privilege According to the 87 
Code of Canon Law 


Pope possesses jurisdiction everywhere and, conse- 
quently, he can concede a privilege which must be hon- 
ored in all places. Bishops, however, do not enjoy uni- 
versal jurisdiction. As a result in the matter of their 
own laws they can grant a privilege which will have force 
ordinarily only in the territory subject to them. The 
details of a privilege which follow the second principle 
named above must be learned from the grant itself. Thus 
if a Papal privilege allows a priest to celebrate mass on 
a portable altar, except where a church is within easy 
access, it would be unlawful to use this privilege in any 
other way. Or, if a Bishop should grant a privilege in 
a matter of his own law, but restrict the use to a certain 
city, it would be improper to extend the use of this privi- 
lege to another place. When the efficient cause of a 
privilege is well considered, the reason for these prin- 
ciples will be found readily. The efficient cause of a privi- 
lege is the legislator’s will. This he can restrict or 
extend as he desires, and accordingly, the use of a privi- 
lege will be lawful or unlawful in so far as it agrees 
with the will of the legislator. 

An interesting question arises at this point whether 
or not, under special circumstances, a privilege can be 
used beyond the territory of the grantor. It is hardly 
necessary to limit expressly this consideration to Hpis- 
copal privileges. From the very nature of the question 
Papal privileges are excluded since the Pope’s jurisdic- 
tion exists everywhere, and knows no territorial limit. 
A Bishop’s jurisdiction is limited by distinct territorial 
lines, and beyond these he has no jurisdiction. At first 
isight, then, it would seem that an Episcopal privilege 
could not be enjoyed outside of the grantor’s diocese. 
However, if the idea of jurisdiction is further examined, 
it will be found that contentious jurisdiction* is limited 





4 Contentiosa, iuxta omnes, iurisdictio dicitur quae controversias inter 
contendentes dirimit. Proinde necessario tudicialem processum 
requirit. Solieri, o.c., n. 47; ef. Can. 201, § 2. 


88 Principles of Privilege According to the 
Code of Canon Law 


to the confines of the diocese while voluntary jurisdic- 
tion® is not thus limited. For instance, a Bishop can 
grant faculties to priests in his diocese while he himself 
may be miles away from the diocese. So much is clear: 
a Bishop absent from his diocese can exercise voluntary 
jurisdiction in the diocese. But could Episcopal juris- 
diction always be extended to validate the use of a privi- 
lege when the grantee himself were outside the diocese? 

While the question presents some interesting fea- 
tures, it is not of much practical importance. If it be 
remembered that a Bishop has ordinary power to grant 
privileges only in respect of his own laws, the field is 
considerably narrowed. Excluding delegated power 
there can be no question of a privilege in the maiter of 
a general law in so far as any Superior under the Pope 
is concerned. Then, if it be further remembered that 
most of the Episcopal laws are territorial and have no 
binding force beyond the diocese, the case becomes even 
more restricted. The question, then, resolves itself into 
a matter of a personal privilege. Maroto® says that such 
a privilege could be used outside of the diocese. Palao,? 
writing several centuries before, held the same view but 
hedged in his conclusion with so many restrictions that 
the privilege would seldom be enjoyed. Palao says that 
a privilege could be used outside the territory of the 
grantor provided it be not forbidden by common law, or 
by synodal law. Besides if the privilege were contrary 
to the existing law for contracts, or contrary to the com- 
mon good, it could not be used. Modern ecclesiastical 
law dissolves one item of Palao’s contention and confirms 
the rest. Canon 14, § 1, n. 2 says that travellers are not 
bound by the law of the place in which they are at pres- 





5 Turisdictio voluntaria dicitur qua Praelatus extraiudicialiter nemine 
contradicente, praebet offictum, prouti si Ordines conferat, a censuris 
absolvat, indulgentias largvatur; vel etiam censuras per modum 
praeceptt irrogat. Solieri, o.c., n. 47; cf. Can. 201, § 3. 

6 Maroto, o.c., n. 300, v. I. 

T Palao, o.c., tr. 3, disp. 4, p. 6, n. 4-5. 


Principles of Privilege According to the 89 
Code of Canon Law 


ent unless these laws pertain to public order, or the sol- 
emnity of acts. Consequently, synodal laws do not bind 
travellers provided they do not govern matter allowed 
by the Code. Suarez’s doctrine is much the same as 
ithat given by Palao. After pointing out that Papal privi- 
leges are of value everywhere, if they are conceded abso- 
Intely, Suarez applies the principle of territorial juris- 
diction to prelates inferior to the Pope.’ To use a privi- 
lege, says Suarez,® outside the territory where it was con- 
ceded, the matter of the privilege must not be forbidden 
by common law, or by particular law, and it must not 
depend on the consent of the Superior of the place where 
tthe grantee wishes to use his privilege. . Suarez admits 
that a person can scarcely be enjoying a privilege when 
his activity is not forbidden. No privilege is needed 
where no law is infringed. 

What conclusion can be drawn from these opinions? 
Maroto’s brief statement that a personal privilege grant- 
ed by a Bishop is valid everywhere, seems to be the only 
conclusion possible. The whole discussion is practically 
barren of examples because Episcopal laws are usually 
territorial laws, and have no force outside of the legis- 
lator’s territory. But a Bishop can enact personal laws. 
These laws would bind even outside of the legislator’s 
territory. An exemption from these laws would be valid 
everywhere. Canon 201, § 3 recognizes the power of juris- 
diction to be exercised over an absentee subject: Nzst 
aliud ex rerum natura aut ex wre constet, potestatem 
wrisdictionis voluntariam seu non-iudicialem quis exer- 
cere potest******* qut in subditum e territorio absentem. 

It is possible that a Bishop may enjoy delegated 
power to grant a privilege in respect of universal law. 
While this in effect might be considered a dispensation, 
its perpetuity would entitle it to be considered after the 





8 Suarez, o.c., lib. 8, cap. 26, n. 5. 
9 Suarez, o.c., lib. 8, cap. 26, n. 10. 


90 Principles of Privilege According to the 
Code of Canon Law 


manner of a privilege. For example, a Bishop using his 
delegated power grants one of his subjects a privilege 
not to fast.1° Would this be of value outside the grantor’s 
territory? Suarez" gives three reasons why such a privi- 
lege would be valid: (a) use considers the privilege to 
be valid; (b) the general law does not depend on one or 
the other place: a privilege simply removes the obliga- 
ition without reference to territory; (c) congruity de- 
anands such interpretation, for the grantee has already 
been judged worthy of a privilege, and it would be diffi- 
cult and arduous to go thru the same formalities when- 
ever the grantee found himself in another diocese. 
Palao,’* on the other hand, mentions an argument in oppo- 
sition to such use of a privilege. The general law, he 
says, is physically one, but morally a distinct obligation 
in every place. This is shown from the fact that a cus- 
tom may abrogate a law in one place while the obliga- 
tion continues in another. Hence it cannot be inferred 
that a release from an obligation in one diocese, releases 
likewise from the obligations existing in other dioceses. 
Palao*® himself answers this argument satisfactorily. 
Conceding the distinct obligation in every diocese, Palao 
maintains that the exemption, or privilege is really given 
by the supreme legislator himself, altho the concession is 
made by means of the grantee’s Prelate. This seems to 
be the only proper response to the argument. The only 
way in which an inferior Prelate can grant a privilege in 
common law is by delegation. Delegation means that a 
person acts in the name of another. In this ease it is 
the Superior who grants the power. According to the 


10 Canon 1245 gives Ordinaries and pastors power to dispense in individual 
eases. The difference between this concession and the delegation 
considered in the text is obvious. 

11 Suarez, o.c., lib. 8, cap. 26, n. 15. 

12 Palao, o.c., tr. 3, disp. 4, p. 6, n. 7. 

13 Palao, o.c., tr. 3, disp. 4, p. 6, n. 8, 


Principles of Privilege According to the 91 
Code of Canon Law 


Rule of law,* it is the same to act thru another as to act 
oneself. Thus it may be said that the supreme legislator 
really grants the privilege, and consequently attributes 
validity wherever the law is in force. Two of Suarez’s 
arguments are not conclusive. Use and congruity could 
scarcely of themselves solve the question at hand. How- 
ever, Suarez’s second argument is worthy of attention. 
It rests on legal principles and touches the point in dis- 
eussion. Without needless repetition it can be seen that 
Suarez’s reason is the same fundamentally as Palao’s 
and receives similar confirmation from Rule 72 of Sexto. 

The Code says a personal privilege follows the per- 
son.” This refers primarily to a personal privilege 
granted by the supreme legislator himself, but it also 
refers to personal privileges which are granted in his 
name. Therefore a personal privilege granted by a 
Bishop in virtue of his delegated power would be valid 
everywhere: privilegium personale personam sequitur. 

There is scarcely any necessity to dilate on the ter- 
-ritorial use of local privileges. Such privileges are at- 
tached to a determined place and cannot be used else- 
where. Thus a privilege of a votive mass at a shrine 
cannot be used except where the shrine exists. 

There are several other points to be examined in the 
use of a privilege. It is possible that two privileges may 
exist in regard toa similar right. Again, one person may 
have the privilege to exact something, e. g., tithes, from 
everyone in his territory, and another person may enjoy 
the privilege of exemption from this tribute. In such 
circumstances which privilege is preferred? The first 
case is not difficult to solve. The concessions are paral- 
lel and should not conflict. Any opposition which may 
arise is entirely incidental and would not deprive one 
or the other of his rights. When communication of privi- 





14 RJ. 72 in VI: Qui facit per alwm, est perinde, ac st faciat per sé 


ipsum. 
15 Can. 74. 


92 Principles of Privilege According to the 
Code of Canon Law 


leges was in vogue, it was well within reason that appar- 
ent conflict might be had. Now, however, since this 
method of acquiring privileges is no longer in force,*® 
less apparent opposition will be experienced. 

But there is a case where a conflict of privileges 
really exists. This is what is formally known as usus 
privilegi contra alium pariter privilegiatum..” In this 
case a conflict exists in regard to the use of the same 
privilege. The example of tithes will help to bring the 
details of this conflict of rights. A Bishop obtains the 
privileges of exacting tithes from everyone in his terri- 
tory. At the same time there exists a privilege that a 
certain religious institute is exempt from tithes. Ob- 
viously, one right cannot be secured without the sacrifice 
of the other. 

The rule which might be advanced, privilegiatus non 
potest uti privilegio suo contra alium privilegiatum, is 
unsatisfactory, as Schmalzgrueber himself admits.1® The 
reason is that no matter what the rule may say in a 
general way, one of the privileged parties ordinarily pre- 
serves his privilege intact. While a rule cannot be ex- 
pected to hold for every individual case, yet it should 
cover the majority of cases, and certainly be a general 
standard which can be invoked to settle disputes. Hence 
more detailed principles are necessary in order to arrive 
at a suitable conclusion for all questions concerning a 
conflict in the use of privileges. 

(a) In the first place, after noting possible irri- 
tating clauses, it is necessary to examine the scope of 
the conflicting privileges. If one privilege is general, 
and the other particular, the latter is to be preferred to 
the former because it is a derogation of it.1° Therefore, 
16 Inability to acquire privileges by communication is restricted to re- 

ligious. Cf. can. 613, §1. 

17 Schmalzgrueber, o.c., lib. V, tit. XXXIIT, n. 100-105. 
18 Schmalzgrueber, o.c., lib. V, tit. XX XITI, n. 105. 


19 R.J. 34 in VI; Suarez, o.c., lib. 8, cap. 23, n. 6; Palao, 0.0., tr. 3, disp. 
4, p. 8, n. 2; Tuschus, o.¢., v. VI, concl. 760, n. 13, 


: 


Principles of Privilege According to the 93 
Code of Canon Law 


using the example above, if the Bishop’s privilege was 
so general as to cover every person and institute in his 
diocese, while the institute’s privilege merely regarded 
exemption from Episcopal tithes, then the institute can 
enjoy its privilege to the loss of the Bishop’s rights. 

(b) Secondly, if both privileges are particular, or 
both general, the privilege ought to be inspected to see 
if there 1s some way to conciliate both.2° Verbal conflict 
may be had without real opposition. Some condition 
may not be apparent at first sight, but would be revealed 
upon closer examination. 

(c) Thirdly, if the privileges really conflict, the 
privilege to be enjoyed will be the one which is stronger 
inlaw. Thus priority of concession will determine which 
one is to be used:*! or, the position held by the grantor 
will solve the difficulty. A Papal privilege will take pref- 
erence over an Episcopal privilege.” 

The rule, then, that a privileged person cannot use 
his privilege against another privileged person must be 
correctly understood to mean that the former cannot 
prosecute his rights against a stronger right. It mat- 
ters little how this prevalence is shown.*? Should it be 
impossible to detect any prevalence, both privileges must 
be referred to their grantor for further consideration. 
The Code says, in the case of rescripts, both are invalid 
if priority cannot be established.** 

Passing from the consideration of the positive use 
of a privilege it remains to be seen whether a privilege 
must be used. If it be remembered that a privilege con- 
sists in the concession of a favor and the right to use 
this favor, hardly any obligation can be urged to force 
the use of a privilege. But it must be further borne 





20 Schmalzgrueber, o.c., lib. V, tit. XXXIIT, n. 102, 
21 Can. 48, § 2. 
22 Schmalzgrueber, o.c., lib. V, tit. XXXIIT, n. 103. 
23 Schmalzgrueber, o.c., lib. V, tit. XX XIIT, n. 105, 
24 Can. 48, § 3, 


94, Principles of Privilege According to the 
Code of Canon Law 


in mind that only the gratuitous nature of a favor is 
now considered, apart from any necessity arising from 
duty, or precept. Hence with one stroke many privi- 
leges widely so-called, or real laws, are eliminated 
from this discussion as common law demands their use.” 
Thus, for instance a priest cannot forego the use of 
his privilegium canonis, or fort. Similarly an exempt 
religious could not neglect to use his privilege of exemp- 
tion from Episcopal jurisdiction. Canon 69 defines the 
issue very well: 


Canon 69. Nemo cogitur uti privilegio in sui dum- 
taxat favorem concesso, nisi alio ex capite exsurgat obli- 


The first part of this canon is explicit. Alexander 
III in his answer to the monks of Saint Andrew’s mon- 
astery says any one is free to yield his rights.2° The 
Rules of Law contain an axiom which is applicable here. 
Rule 61 says Quod ob gratiam alicmus conceditur, non 
est im eius dispendium retorquendum. A favor should 
not turn out to be harmful; and, therefore, if this de- 
velopment is feared, the favor need not be used. 

An obligation to use a privilege may arise from a 
cause extraneous to the privilege. For example, a privi- 
lege may be enjoyed in regard to attending mass during 
an interdict. Should the grantee of such a privilege 
reside in a locality where an interdict is in force, he 
would be obliged to fulfill the precept of the Church. The 
reason for this obligation is that a precept exists de facto 
since the effect of the censure is removed by means of a 
privilege. Thus observance of the precept is licit for 
the privileged person while it would be illicit for the 
community under the interdict. Hence the privileged 
person would be obliged to use his privilege in order 





25 Zoesius, o.c., lib. V, tit. XX XIII, n. 28. 
26 C. 6, X, de privilegits et excessibus privilegiatorum, V, 33. 


Principles of Privilege According to the 95 
Code of Canon Law 


that he could fulfill the law of the Church.” Generally 
speaking, the same obligation arises to use a privilege 
whenever by means of a privilege an obstacle is removed 
permitting the fulfillment of law or precept.” 


Palao*® and Suarez*® question the statement that, 
strictly speaking, a privileged person can be obliged to 
use his privilege if it be conceded merely in his own 
favor. For instance, from a consideration of the favor 
granted in the privilege discussed in the preceding para- 
graph, it is clear that the privilege removes the effect 
of the censure, but does not touch any duties that the 
grantee may have. The wording of Canon 69 does not 
directly reprehend this opinion, altho it places the obli- 
gation more on the use of the privilege rather than on 
a possible effect the use might have. The principal objec- 
tion to Palao’s and Suarez’s opinion is that it does not 
allow for those privileges the purpose of which is not 
to exempt the grantee from the effect of penalties. Any 
number of privileges exist in which the actual positive 
use of a privilege is necessary. Many privileges beyond 
the law are of this kind: such as the faculty of absolving 
from reserved sins, ete. It cannot be said that the privi- 


27 Suarez, o.c., lib. 8, cap. 23, n. 8. 

28 Schmalzgrueber, o.c., lib. V, tit. XXXIITI, n. 99. Bucceroni, (Casus 
Conscientiae, 21, 1) admits that a privilege which exempts from a 
censure must be used because the common law enjoins a precept, 
but he denies that a privilege must be used in other instances. Thus 
a privilege to hear mass in a private oratory would not have to be 
used by a person who could not leave the house. One of Bucceroni’s 
reasons is that celebration of mass in a private oratory is ‘‘ quid 
odiosum.’’ While this may be true in respect of the place where 
mass is to be celebrated, it hardly touches the obligation arising from 
precept. Bucceroni’s second reason is of more value. A privilege to 
hear mass in a private oratory does not immediately affect the 
impediment, e.g., infirmity, and hence does not call for active use 
of the privilege. Yet the obligation of the precept seems to cancel 
the freedom which would attend the use of the privilege, assuming 
that no great inconvenience arises. Therefore, if mass could be had 
without great inconvenience, the precept would have to be fulfilled. 
Cf. Noldin, o.c., n. 195. 

29 Palao, o.c., tr. 3, disp. 4, p. 7, n. 2-3. 

30 Suarez, o.c., lib. 8, cap. 23, n. 9. 


96 Principles of Privilege According to the 
Code of Canon Law 


lege exempts from these reservations, and thus common 
law would apply. On the contrary a formal use of the 
privilege would be necessary in order that it may have 
effect. 


Can this formal use of a privilege be of obligation? 
Canon 69 expressly states that such an obligation can 
arise. The common good, as Maroto*™ observes, together 
with possible private injury might make the use of a 
privilege obligatory. A penitent may confess reserved 
sins to a confessor who enjoys the faculty of absolving 
from such sins. Injury to the penitent would result if 
the confessor refused to use his privilege. Hence he 
would be obliged to absolve the reserved sins.*” 


Aside from any extrinsic obligation which may arise 
restricting the freedom conceded in the use of a privilege, 
canon 69 limits the liberty of using or not using a privi- 
lege to those privileges which are granted solely in 
favor of the grantee. A person may enjoy a privilege 
without its concession having been made directly to him- 
self. Such a privilege must be used whenever a legit- 
imate occasion presents itself. For purposes of clarity, 
it will be well to distinguish between the privileges result- 
ing from common law, and the privileges accruing from 
particular law. 


(a) Common law contains among others** two im- 
portant classes of privileges: clerical privileges and 
exemption. The latter is less extensive than the former, 
for according to canon 615 it affects only those religious 
who are regulars. Their novices are included. Any 
other religious society must receive special concession 


31 Maroto, o.c., n. 300; ef. Smith, o.c., n. 127. 

32 Vermeersch-Creusen, o.c., v. I, n. 134; Genicot, o.¢, v. I, n. 109; 
St. Alphonsus, o.c., lib. I, app. IT, ¢. I, n. 3. 

33 E.g., Cardinals, can. 239; Bishops, can. 349; Administrators, can. 315; 
Vicars and Prefects Apostolic, can. 308. The use of all of the 
privileges granted to Prelates cannot be urged with any obligation 
unless their rank would suffer from non-use of the privileges. 


Principles of Privilege According to the 97 
Code of Canon Law 


of the privilege of exemption.** Clerical privileges, how- 
ever, include all who have at least received tonsure, and 
besides these, extends to all religious whether regular 
or not.» In considering these privileges, it must always 
be remembered that they are conceded to individual per- 
sons in view of their state in life. Of course, one of the 
practical effects of these privileges is to make the indi- 
vidual person privileged so that he may have protection 
and rights which he would not otherwise enjoy. With 
this in mind, it is easy to understand why a cleric, or a 
regular must always use his privilege. To fail to do so 
would work an injury to his respective state even tho 
in some particular interest he might fare better by a 
non-use of his privilege. For instance, a regular may 
be dissatisfied with the attitudes of his Superior. ‘The 
Ordinary of the diocese, however, is more favorable. Re- 
volving this in his mind, the regular considers it to be 
more advantageous should he not use his privilege of 
exemption, and thus place himself under the jurisdiction 
of the Ordinary of the diocese. This, however, he cannot 
do as his privilege is bound up with the rights of his 
Order. Any personal discomfort will not justify the 
sacrifice of the community’s rights.*® 


(b) Privileges resulting from particular law must 
likewise be used. While the reason is not the same as 
obtains in privileges granted to a state in life, yet the 
privilege does pertain to the community as such, and 
not to the individuals who comprise the community. 
Thus, for instance, a congregation obtains the privilege 
of reciting a proper office in honor of a saint. All the 
members of the congregation are obliged to recite this 
office and not the common one. Non-use of such a privi- 
lege would infringe on the rights obtained by the entire 





34 Can. 618, § 1. 
35 Can. 614. 
36 Tuschus, o.c., v. VI, concl. 759, n. 3. 


98 Principles of Privilege According to the 
Code of Canon Law 


community.*’ Similarly, a different form of election 
than that described in the Code must be used by all the 
members of the community to which it is conceded. 





37 Vermeersch-Creusen, o.c., v. I, n. 134. 


CHAPTER VII 
CESSATION OF PRIVILEGES. 


In an earlier chapter it was admitted that the note 
of stability could be numbered among the few character- 
istics which a law and a privilege have in common.! 
Absolute stability will not be found in human legislation, 
whether ecclesiastical or civil, for such a degree of per- 
manence postulates an immutable will of a legislator. 
Relative stability, however, is attainable. A greater rel- 
ative stability will be found in a law than in a privilege 
for the reason that the common good counsels that a 
settled condition be not disturbed. But, as is evident, 
this settled condition can give place to a change in legis- 
lation whenever necessity demands such alteration of 
law. Thus abrogation, and derogation destroy the note 
of stability found in a law.? 

In a privilege stability is also necessary because the 
particular good precludes indiscriminate and unreason- 
able destruction and alteration of rights.2 Yet the stabil- 
ity of a privilege is subject to more changing circum- 
stances than can effect a change in a law. Thus renun- 
ciation can cause the loss of a privilege as well as revo- 
eation. Other methods of losing a privilege, such as 
lapse of time, loss of power, etc., show that the stability 
of a privilege is not the same as the stability of a law. 

A privilege can be lost either by the defect of some 
intrinsic condition or quality, or by the extrinsic action 
of a Superior.* In the former case, the privilege would 
cease of itself without any procedure on the part of the 





1 ‘Of. p. 6. 

2 Verméersch-Creusen, o.c., v. I, n. 77. 
3 RJ. 16 in VI. 

4 Suarez, o.c., lib, VIII, ¢. 29, n. 2. 


[ 99 ] 


100 Principles of Privilege According to the 
Code of Canon Law 


competent authority. Thus, for instance, faculties for 
a limited number of cases cease when this number has 
been completed.” On the other hand, extrinsic action 
can terminate a privilege at any time even if the fruition 
of the privilege would still be beneficial. 

The ways in which a privilege can, be lost are many. 
The Code thru seven canons furnishes the underlying 
principles according to which the loss of a privilege must 
be judged. A more detailed exposition will be found in 
the following numbers. 


1. Revocation of Privileges. 


Can. 71. Per legem generalem revocantur privilegia 
in hoc Codice contenta; ad cetera quod attinet, servetur 
praescriptum can. 60. 


Before entering upon an exposition of this canon, 
it may be well to enumerate the possible methods of revo- 
cation, adding a word of explanation. Hapress revoca- 
tion is so evident that it needs no further elucidation. 
Tacit revocation, on the other hand, requires a little con- 
sideration. Perhaps the best way to explain tacit revo- 
cation would be to show how it may occur. 

There are three ways in which tacit revocation may 
be had. First, by universal law. Following the reason 
laid down by Boniface VIII, individual grants are not 
included in the revocation made by universal law. The 
legislator is presumed not to be acquainted with these 
individual grants, or privileges. Often enough they will 
be the result of custom concerning which the legislator 
would have, perhaps, only the imperfect knowledge which 
results from the legal assent accorded customs.’ Sec- 
ondly, by judicial sentence. A person may enjoy immu- 
nity by reason of a privilege, but if nevertheless he is 





5 Can. 207, § 2 is an exception to this principle. 
6 C, 1 de constitutionibus, I, 2 in VI. 
7 Can. 25, 63, $1, 


Principles of Privilege According to the 101 
Code of Canon Law 


degitimately condemned, his privilege is considered re- 
voked. Thirdly, by the concession of another, and pos- 
sibly parallel privilege. But this would at most be a 
‘diminution of the former privilege rather than an abso- 
lute and general revocation.’ These three items of tacit 
revocation are admittedly elastic and can scarcely give 
a certain indication of the altered mind of the legislator. 
But tacit revocation is a difficult subject to surround with 
definite rules. A negative rule would be almost as un- 
satisfactory. Yet this principle may be helpful in de- 
eiding cases: tacit revocation is not present in particular 
rescripts. Recognizing the difficulty of the question at 
hand, the legislator will generally make proper provision 
for the revocation of privileges, if he intends to revoke 
them. But this would already become express revocation. 

It is fitting here to mention the rule which the Code 
proposes in order to judge the existence or non-exist- 
ence of privileges in relation to the canons of the Code. 
Canon 4° gives this rule: in order that privileges may 
exist after the Code was published, it is necessary that 
the grant be conceded by the Holy See, that the bene- 
ficiary be a physical or moral person; that the privi- 
lege be still in use, and not revoked at some time in the 
past; and finally that the privilege be not expressly re- 
voked by the Code itself. 

Hpiscopal privileges are not affected by canon 4. 
These privileges will remain in force, or be revoked ac- 
cording to the prescription of canons 71 and 60, § 2. 

In order that Papal privileges may enjoy the suf- 
frage of canon 4, the privileges must actually be in use, 
that is, in legitimate use and not lost thru renunciation, 
or liberative prescription. The privileges must not have 





8 Suarez, o.c., lib. VIII, c. 39, n. 1, 2, 4, 5. 

9 Can. 4. Jura aliis quaesita, itemque privilegia atque tndulta quae, ab 
Apostolica Sede ad haec usque tempora personis sive phystcis swe 
moralibus concessa, in usu adhuc sunt nec revocata, integra manent, 
nist huius Codicis canonibus expresse revocentur. 


102 Principles of Privilege According to the 
Code of Canon Law 


been revoked before the Code. It does not follow, how- 
ever, that such privileges may not be revoked after the 
Code. This, in fact, took place in a decree of the Congre- 
gation for the Propagation of the Faith, January 16, 
i1924.° The privilege of precedence was thus lost to 
missionaries who enjoyed the title ‘‘ Apostolic Mission- 
ary.’’ Finally, the privileges must not have revoked by 
the Code itself.11 Examples of such revocation can be 
found in canons 348, § 2; 403; 460, § 2; 519; 522; 544, § 2; 
654; 774, § 1; 876, § 1; 964, n. 1; 1157; 1356; 1576, § 1. 

A decision of the Holy Office will give a practical 
illustration of canon 4. A question was thus proposed 
to the Holy Office: Utrum post can. 930’? novi Codicis 
adhuc perseveret existentia altaris privilegiatt pro ago- 
mezantibus? The Holy Office answered: Affirmative. 

Similarly the Congregation for Religious decided 
‘that the privilege conceded to novices by the decree 
Spirituali consolationé still held its force. This privilege 
consisted in allowing novices who were in danger of 
death to make their religious profession, altho the requi- 
site term for the novitiate had not been completed." _ 

With these introductory notions explained, canon 71 
ean be examined. The first part of this canon refers to 
privileges which are found in common law. While such 
privileges confer favors they do so by means of a law. 
Most of these favors are obtained only when all the 
elements of a law are present.’* The beneficiary is not 
free to reject his privileges. In some cases, however, the 
grantee will not be obliged to use his privilege. 

In order that these privileges may cease, the Code 





10 AAS. v. XVI, p. 243. 

11 Cicognani, 0.¢., p. 27. 

12 Can. 930. Nemo indulgentias acquirens potest eas aliis in vita degen- 
ttbus applicare; animabus autem in purgatorio detentis indulgentiae 
poe a Romano Ponttfice concessae, nisi aliud constet, applicabiles 
sunt. 

13 Both decisions in Cicognani, o.c., p. 31, 

14 ASS. v. III, p. 433, 


Principles of Privileye According to the 103 
Code of Canon Law 


postulates a general law. Of course, a single religion 
now enjoying the privilege of exemption may lose this 
favor by a disposition of the Holy See. But the effect 
would be merely to deprive this individual religion of its 
privilege without touching the privilege itself as it is 
contained in the Code. 

That a new general law revokes a former general law 
was already recognized by Boniface VIII.*° He writes 
that a later constitution revokes the former. But he 
adds: quamvis de ipsa mentionem non faciat. Thus the 
mere incompatibility of the two general laws, covering 
the same matter argues the revocation of the former 
law.’’ Therefore, should a future law be enacted which, 
without reference to the privilege of exemption, state 
that henceforth all religious are to be subject to the Or- 
dinary of the diocese, the privilege of exemption would 
cease by virtue of canon 71. This principle is applicable 
to all the favorable laws existing in the Code. 

The second part of canon 71 is concerned with privi- 
leges in the strict sense of the word. While reference 
is made in the canon merely to rescripts, the same under- 
lying juridical principles likewise have their application 
in verbal privileges. As it was observed above,'® verbal 
privileges embody all the requisites of a privilege. In 
fact, favors granted by rescript, and concessions awarded 
verbally differ only in the non-essential element of writ- 
ing. To revoke a verbal privilege a document is not 
necessary. The mere notification of the change in the 
legislator’s will is sufficient to cause the loss of the Poy 
lege.*® 


15 Can. 615. Regulares, novitits non exclusis, swe viri sive mulieres, cum 
eorum domibus et ecclesiis, exceptis tis monialibus quae Supertoribus 
regularibus non subsunt, ab Ordinarii loci iurisdictione exempti sunt, 
praeterquam in casibus a iure expressis. 

16 C. 1 de constitutionibus, I, 2 in VI. 

17 DeCamillis, o.c., lib. II, C. 1, art. I, n. XII. 

pe Ct p.518, 

19 Palao, o.c., tr. 3 disp. 4, p. 21, §5, n. 4. 


104 Principles of Privilege According to the 
Code of Canon Law 


The first principle of revocation laid down in the 
Code*® says that a rescript that has been revoked by a 
special act of a Superior continues in force until the revo- 
cation has been intimated to the one who obtained the 
rescript. While this principle applies to all rescripts, its 
express application is made in canon 71 to the matter 
of privileges. Now if this principle be examined closely 
it will be found that the legislator extends the actual 
duration of a rescript from the time that he expresses 
his intention to revoke until the time that this intention 
is made known to the grantee.*? In ecclesiastical law, 
the will of the legislator, requiring no consent of the 
governed, is powerful enough to bring a privilege into 
existence without waiting for acceptance of the favor. 
Thus a rescript can be granted, and is valid without the 
consent of the grantee.** A privilege enjoys the same 
priority because its entire efficient cause is the benign 
disposition of the legislator. Such is the principle which 
governs the issuance of a rescript, or privilege. 

Revocation similarly lodges in the legislator’s will.*8 
What is conceded without consent can be revoked without 
consent. Therefore, if this element be stressed, it will 
be seen that, strictly speaking, a rescript can be revoked 
as soon as the legislator signifies his intention to do so. 
What is found, then, in canon 60, $ 1, is nothing else than 
a suspension of the effect of the legislator’s will until 
it be made known to the grantee. However, should the 
document of revocation read expressly that at the mo- 
ment of intimation, the legislator chooses to revoke, then 
his intention would not be complete until the grantee is 
notified. 

If the proper position of the legislator be further 





20 Can. 60, § 1. Rescriptum, per peculiarem Superioris actum revocatum, 
perdurat usque dum revocatio ei, qui tllud obtinuit, significetur. 

21 Palao, 0.c., l.c., n. 2 says this was the teaching in his day. 

22 Can. 37. 

23 Palao, 0.c., l.c., n. 4. 


Principles of Privilege According to the 105 
Code of Canon Law 


kept in mind, no difficulty will arise concerning the neces- 
sity of a cause in order that a revocation of a privilege 
be valid. A just cause is not essential to the validity 
of a privilege. Neither, at least in a general way, is a 
just cause essential for the revocation of a privilege. 
The reason is that a privilege depends for its conserva- 
tion as well as for its beginning on the benign will of 
the legislator. True enough, revocation without cause 
would be capricious and scarcely befitting a Superior. 
Nevertheless, should such revocation occur, it would be 
valid. The privilege would cease. 


All this is true in its fullest sense in regard to privi- 
leges which refer to delegation; it is likewise true of 
revocation of all gracious privileges. But onerous and 
conventional privileges may not be so summarily re- 
voked. A question of justice and mutual obligation arises 
in these privileges. Often these two classes of privileges 
will converge into one as happens in concordats. 

It must be remembered that the question is not 
whether the Pope can revoke these privileges, but 
whether without cause he can revoke them. It seems 
that justice would be violated if the Pope did not have 
a sufficient cause for his revocation. The beneficiary as- 
sumed a burden which he would not have assumed if the 
privileges had not been granted to him. Therefore, since 
a reciprocal obligation exists, the privilege cannot be 
revoked without a just cause** unless the object of the 
privilege conceded should be a right which the Pope 
could not alienate. What would be such a cause for 
revocation? The public good will furnish such a cause.” 
The Pope is the judge of the necessity of the revocation 
and of the sufficiency of the cause. His decision would 
have to be followed. Compensation would have to be 





24 Smith, o.c., n. 129; Cf. Solieri, o.c., n. 339. ; siete” 
25 Besides the common good, Calvinus suggests delictum, abusus, iniquitas, 
cessatio causae finalis, necessitas, utilitas, 0.c., ver. privilegium. 


106 Principles of Privilege According to the 
Code of Canon Law 


made to the former beneficiary but this could take many 
forms, such as, surrender of a corresponding benefit, or, 
substitution of another privilege less injurious to the 
common good.” 

In revoking a privilege, liceity always demands a 
just cause. A Superior is presumed to act with pru- 
dence and thoughtfulness. He is always expected to 
propose to himself sufficient reasons for his actions. 
Hence to revoke a privilege licitly, a Superior must have 
a just cause, and one proportionate to the privilege he 
revokes. Maroto *’ observes the nice gradation of causes 
required for the revocation of a gracious, and a remu- 
nerative privilege. The latter is awarded in recognition 
of merit and postulates a weightier cause than expected 
for the revocation of a gracious privilege. 

It may be recalled here that the first part of canon 
71 deals with privileges which are contained in the 
Code. These were seen to be lost by the enactment of a 
contrary general law. The case is entirely different when 
a general law contrary to a strict privilege outside the 
Code is promulgated. The Code expressly states?® that. 
such a law does not revoke rescripts (privileges) unless 
the law itself declare that it does, or the law be given by 
one higher in authority than the Superior who issued the 
rescript. 

Assuming a legitimate cause for liceity, it is evident 
that the legislator can revoke all individual grants op- 
posed to his law.*® But is he presumed to do so? Boni- 
face VIII decided that a constitution did not abolish 
customs and statutes unless express mention were 
made.*® Boniface VIII himself supplies an illustration 
of such express revocation. Abuses had arisen from 





26 Palao, o.c., l.c., n. 1; Maroto, o.c., v. I, n. 301. 
27 Maroto, o.c., l.c. 

28 Can. 60, § 2. 

29 Palao, o.c., tr. 3, disp. 4, p. 21, $3, n. 1. 

30 C, 1, de constitutionibus, I, 2 in VI. 


Principles of Privilege According to the 107 
Code of Canon Law 


concessions granted to absentee beneficiaries. Divine 
worship was neglected and the clerics had at times even 
omitted the recitation of the Breviary which gave the 
title to their benefice. The Pope in one stroke revoked 
all these concessions. Mos volentes emendare praeterita, 
et quantum possumus adversus futura cavere, omnes 
huiusmodi et similes' indulgentias, personis, non ecclesiis 
vel dignitatibus datas, penitus revocamus, et earum con- 
cessionem nostris volumus exsulare temporibus.* 

The Code adopts this principle of Boniface VIII and 
applies it to rescripts. At first sight the full application 
of this principle does not seem to be in force at present 
for canon 60, § 2 does not demand express revocation. 
The canon reads: nisi aliud in ipsa lege caveatur. Thus 
tacit revocation seems to be admitted. This tacit revo- 
cation would happen if the wording of the law were con- 
trary to the continued use of the privilege. However, 
if the first part of canon 71 be studied closely, it will be 
seen that only privileges existing universally come under 
the revocation of a general law. Individual rescripts 
and privileges are thereby unaffected. Therefore the 
clause nisi aliud in ipsa lege caveatur must be taken to 
mean express revocation. This could be obtained by the 
use of formulas such as non obstantibus privilegus; non 
obstantibus quibuscumque privilegus etiam speciali men- 
tione vel specialissima mentione dignis.** 

The norms treated here are likewise applicable to 
the revocation of Episcopal privileges, and rescripts. A 
Bishop can grant a privilege in regard to his own law, — 
and can grant it in the form of a rescript. Now if he 
should found another law which would be contrary to 
the use of the rescript obtained under the former law, 
the Bishop would have to make special mention concern- 
ing revocation of rescripts and privileges in order that 





31 C. 15, de rescriptis, I, 3 in VI. 
32 Suarez, 0.¢., lib. VILL, ce. 38, n. 1-3; Maroto, o.c., v. I, 301, 


108 Principles of Privilege According to the 
Code of Canon Law 


they might cease. If this special mention were omitted, 
the use of the rescript would be valid and lawfu. 

The last item to be considered under revocation of 
privileges illustrates the hierarchical jurisdiction of the 
Church. Canon 60, § 2 reads: Per legem contrariam 
nulla rescripta revocantur, nisi****** aut lex lata sit a 
Superiore ipsius rescribentis. Obviously, the applieca- 
tion of this part of the canon is possible only in regard 
to Episcopal privileges or their equivalent in the face 
of a Pontifical law. The Pope has no superior on earth, 
and consequently there is no question of Papal privi- 
leges being revoked by a higher power. But the revoca- 
tion of Episcopal privileges must come from a law made 
by a Superior, considered in the complete jurisdictional 
sense. Hence an Archbishop cannot revoke the privi- 
leges, or resecripts conceded by one of his Suffragan 
Bishops: nor can an Abbot Primate revoke the rescripts 
of one of the Abbots under his vigilance. Express revo- 
cation is not demanded. It suffices for revocation that 
the Papal law be so worded that an Episcopal pee 
becomes contrary to this law. 


2. Renunciation of Privileges. 

Can. 72. 1. Privilegia cessant per renunciationem a 
competente Superiore acceptam. 

2. Privilegio in sui tantum favorem constituto quae- 
vis persona privata renuntiare potest. 

3. Concesso alicui communitati, dignitati, locove re- 
nuntiare privatis personis non licet. 

4. Nec ipsi communitati seu coetui integrum est re- 
nuntiare privilegio sibi dato per modum legis, vel si re- 
nuntiatio cedat in Ecclesiae aliorumve praeiudicium. 


Renunciation is twofold: proper and improper. The 
latter consists in mere non-use. It is not a surrender of 


Principles of Privilege According to the 109 
Code of Canon Law 


the power to act such as a privilege allows. For instance, 
a privilege to eat meat on days of abstinence is granted 
by the Holy Father. The beneficiary, knowing that he 
is now exempted from the law, nevertheless decides to 
abstain. This non-use of a privilege is called an improper 
renunciation of the privilege because it is concerned 
merely with the effect of the privilege without touching 
the power, or faculty conceded.*® Proper renunciation, 
on the other hand, is the free surrender of the faculty 
conceded by the privilege.** In the example just given, 
should the beneficiary yield his right not to abstain from 
meat on forbidden days, there would be had proper re- 
nuneiation. This assumes that the other condition, 
namely, acceptance on the part of the legitimate Su- 
perior, were fulfilled. 

- Besides this active surrender on the part of the 
beneficiary the renunciation of the privilege must be 
accepted by the competent Superior. The reason for 
this is that the concession, use, fruition, and loss of a 
_ privilege all depend upon the will of the Superior, or 
legislator. He it is who grants the privilege, and his 
will must undergo a change before the privilege can 
cease. The same principle holds, in general, in the renun- 
ciation of benefices.*° 

The competent Superior to accept renunciation will 
be the one who granted the privilege, or his delegate. 
Thus the Pope can accept the renunciation of a Papal 
privilege; the Bishop the renunciation of an Hpiscopal 
privilege. The Superior of a Bishop can likewise accept 
the renunciation of an Episcopal privilege. Yet it must 
be remembered here as well as in the revocation of privi- 
leges, that an Archbishop is not competent in regard to 
the privileges of his Suffragans, nor any other Superior 





33 Suarez, o.c., lib. VIII, c. 33, n. 3. cae 
34 Schmalzgrueber, o.c., lib. V, tit. XX XIII, n. 180; Palao, o.c., tr. 3, disp. 


4, p. 17, n. 5. 
$5 E.g., can. 157; 184; 191. 


110 Principles of Privilege According to the 
Code of Canon Law 


whose power is not in the direct and complete line of 
jurisdiction. 


An objection answered by Palao, might be raised 
here.*® In granting a privilege, the Superior usually 
does so with the tacit condition that the grantee accept 
the privilege, or concession. But by renunciation the 
erantee no longer accepts the privilege. Therefore, re- 
nunciation does not require acceptance on the part of 
the Superior. This objection would be valid if the con- 
dition implied at the time of the concession of the privi- 
lege could be understood to continue forever. If a privi- 
lege were granted in this way, no acceptance would be 
necessary. However, privileges are usually granted 
absolutely in this respect at least. Freedom is allowed 
for the initial acceptance of the grantee, and then the 
condition ceases. The will of the legislator is fulfilled 
as soon as the privilege is accepted. After that the Rule 
of Sexto Bonifacii VIII is in force: Decet beneficium con- 
cessum a principe esse mansurum." 

With the principle proposed in canon 72, § 1 under- 
stood, the following paragraphs of the canon can be con- 
sidered. 


At the risk of repetition, it must be stated again 
that a privilege can be considered personal in two ways: 
first, in so far as a privilege has its effect in an individual 
person, and second, in so far as a privilege has its en- 
tire being in the individual person. The second para- 
graph of canon 72 considers only the latter division. 
Therefore, only privilegium singulariter personale, or 
individually personal, is meant here. Innocent ITI in his 
letter to the Archbishop of Pisa implies the capacity of 
an individual person to renounce his personal privileges 
by condemning the custom of clerics in surrendering 





36 Palao, o.c., l.c., n. 7. 
87 RJ. 16 in VI. 


Principles of Privilege According to the nL 
Code of Canon Law 


their privilegium, fori.*® Clement III expounded the law 
similarly in the case of a violation of privilegiwm canon- 
is.°? A cleric who had suffered at the hands of an aggres- 
sor received compensation for his injuries. Thus he in- 
tended to circumvent the provisions of law entailing ex- 
communication. The Pope refused this renunciation of 
the privilege accorded the clerical state, and maintained 
that private compensation in no way superseded the law. 
Another case of the violation of privilegium canonis took 
place under the reign of Innocent III. In the diocese of 
Braga, a custom existed that clerics voluntarily subjected 
themselves to corporal punishment in satisfaction for 
injuries. Upon request of the Bishop whether this cus- 
tom could continue, the Pope responded that even tho 
this were not a violent assault, yet it was injurious to 
the clerical state and hence forbidden.” 

Gregory IX explicitly allowed the renunciation of 
personal privileges, altho this statement was only a sec- 
ondary item connected with a natural right. In dis- 
cussing the freedom of novices to return to the world, 
the Pope writes: Statuimus, novitios in probatione posi- 
tos ante susceptum religionts habitum, qui dari profi- 
tentibus consuevit, vel ante professionem emissam, ad 
priorem statum redire posse libere infra annum, nisi 
evidenter appareat, quod tales absolute volwerimt vitam 
mutare et in religione perpetuo Domino deservire, QUUM 
QUILIBET RENUNCIARE VALEAT EI, QUOD PRO SE NOSCITUR IN- 
TRODUCTUM.”! 

This principle of private renunciation of privileges 
is taken up in the Code, as well as the prohibition of 
private renunciation in connection with privileges ac- 
corded a state in life.” 

38 ©. 12, X, de foro competenti, II, 2. 
39 C, 15, Xx, de sententia excommunicationis, V, 39. 
40 C. 36, x de sententia excommunicationss, i 39. 


43 -C) 23, x de regularibus et transeuntibus ad religionem, III, 31. 
42 Can. 123. 


112 = Principles of Privilege According to the 
Code of Canon Law 


A comparison of the first two paragraphs of canon 
72 implies that a beneficiary can still enjoy his privi- 
lege even after he has made the formal act of renuncia- 
tion.“ Unless the renunciation were made personally 
to the competent Superior, and immediately accepted, 
some time would elapse between the renunciation of the 
privilege and its acceptance. During this time, the privi- 
dege is still in force and can be used validly. The reason 
for this is that the will of the legislator, or Superior 
is unaltered until he accepts the renunciation. This is 
clear enough from the nature of the case, but there is 
not wanting a Papal decision which supposes this prin- 
ciple. Boniface VIII thus determines the efficacy of 
delegation in regard to a procurator: Incet is, qui procu- 
rator constituitur ab absente, dixeritt, praesentatum sibi 
suscipere nolle mandatum: hoc tamen nequaquam ob- 
stante, quamdiu constituens in eadem perstitertt volun- 
tate, ipsum acceptare poterit, quandocumque placebit.** 


In order to avoid needless repetition, this principle 
gathered from a comparison of the first and second para- 
graphs of canon 72 equally applies to the renunciation 
treated in paragraph 4 of this same canon. 


A privilege which is held jointly by two or more 
grantees cannot be renounced by one of the beneficiaries, 
provided that the matter of the privilege is indivisible. 
One of the grantees is not allowed to prejudice the 
rights of his companions. However, if the privilege 
were really divisible so that the association of the bene- 
ficiaries were but nominal, and the grantees not at all 
considered as participants of the same numerical privi- 
lege, then each one individually could renounce his own 
rights.* 





43 Reiffenstuel drew the same conclusion according to the law of his day, 
o.c., lib. V, tit. XXXIIT, n. 189. 

44 C. 7, de procuratoribus, I, 19 in VI. 

45 Palao, o.c., tr. 3, disp. 4, p. 17, n. 1. 


Principles of Privilege According to the 113 
Code of Canon Law 


The third paragraph of canon 72 imposes a further 
restriction on private renunciation of privileges. From 
the texts of law cited, it is evident that private persons 
are not permitted to renounce the privileges accruing 
to them by reason of their state. But neither are they 
competent to renounce the privileges which do not result 
from a state in life, but are the rights of some commnu- 
nity, dignity, or place. The Code enumerates these sub- 
jects of privilege. A few words concerning each one 
will help to understand the prohibition enjoined on pri- 
vate persons. 


A community, such as a religious Order, or a Con- 
gregation may enjoy privileges. A number do enjoy 
faculties to give special blessings. Such privileges are 
granted to the community as a whole. All the members 
of the Order, or Congregation, provided they are priests, 
are usually empowered to use the privileges, but in doing 
so they are not exercising a right which pertains to them 
primarily. Now since the privilege is not individually 
personal, it cannot be renounced by the action of a pri- 
vate person.*® True the privilege may not always be 
used, if the religious Superior allows this freedom, but 
the faculty cannot be renounced. Thus the Vincentians 
who enjoy the privilege of blessing the Miraculous Medal 
cannot individually renounce fein faculty to enrich these 
medals. Nor can individual Franciscans renounce their 
power to bless the cord of Saint Francis. 


The practice of the Church from the days of the 
early Popes was to urge the conservation of the privi- 
leges accorded to Bishoprics, and dignities of all kinds. 
These privileges can be considered in relation to the dig- 
nity itself, such as an ancient See, or Patriarchate, or in 
relation to the occupant of the See, as for instance, the 
Bishop of Ostia, or the Patriarch of Venice. 





46 Slater, o.c., v. I, p. 129. 


114. ~=Principles of Privilege According to the 
Code of Canon Law 


Gratian*’ devotes over twenty canons to decrees 
emanating from the Roman See in regard to the privi- 
leges pertaining to the Bishopries. After the manner 
of an example showing the solicitude of Rome that privi- 
leges be kept intact, one or the other of the more note- 
worthy canons can well be quoted. The exact term 
renuntiare is not found in any of these canons, but from 
the care and tenacity enjoined on the occupants of the 
privileged Sees, it can be argued that they were not free 
to renounce their privileges. Saint Hormisdas wrote 
thus: Servatis privilegus metropolitanorum vices vobis 
apostolicae sedis delegamus, ut inspectis istis, sive ea, 
quae a nobis sunt nuper mandata, serventur, sive quae 
de ecclesiasticis causis tuae revelation: contigertt, sub 
tua nobis msinuatione pandantur. Erit hoc studi ac 
sollicitudinis tuae, ut talem te in his, quae iniunguntur, 
exhibeas, ut fidem imtegritatemque eius, cus curam 
suscipis, imiteris.*® Saint Gregory likewise emphasizes 
his own regard for the preservation of privileges. The 
Pope wrote thus to Dominic, Bishop of Carthage: De 
ecclestasticis privilegus quod vestra fraternitas scribit, 
hoc postposita dubitatione teneat, quia sicut nostra de- 
fendimus, ita singulis qubusque ecclestis sua wra serva- 
mus, nec cuilibet gratia favente ultra quam meretur in- 
pertior, nec ullt hoc, quod sua wris est, ambitu stimulante 
derogabo: sed fratres meos per omnia honorare cupio, 
stcut honore singulos subveht, dummodo non sit quod 
altert wre ab altero possit oppont.*® 

Commonly personal privileges, likewise, are not sub- 
ject to private renunciation. These commonly personat 
privileges accrue to the occupants of a dignity, e. g., the 
office of a Bishop, and are conceded to an individual per- 
son by reason of the office he holds. Personal merit, 
and ability are not the direct motives for conceding such 
47 C, 1-23, O. XXV, q. 2. | 


48 C. 6, C. XXV, q. 2. 
49 C. 7, C. XXV, q. 2. 


Principles of Privilege According to the 115 
Code of Canon Law 


privileges. Therefore, since the beneficiary himself is 
not the entire final cause of commonly personal privi- 
leges, he cannot.renounce his rights. 


A private person is also incompetent to renounce the 
iprivileges attached to a place. The word ‘‘place’’ in- 
‘cludes sanctuaries, shrines, and, in fact, any place which 
can be the subject of privilege. Frequently the tomb of 
a saint, or a miraculous picture of Our Lady will be 
enriched with some special privileges, such as a votive 
mass on otherwise forbidden days. Such privileges are 
not under the dominion of the caretaker of the shrine, or 
sanctuary. For instance, the Portiuncula chapel in 
‘Assisi enjoys the privilege of having a votive mass of 
the Blessed Virgin celebrated there every day in the 
year except three or four high festivals. Similarly, at 
the shrine of Our Lady of Perpetual Help in Rome, the 
votive mass ean be said very frequently during the year. 
Instances like these could be recounted over several 
pages, even if consideration were merely confined to 
Italian sanctuaries. In some of these sacred places an 
Order, or a Congregation is in charge, in others secular 
priests watch over the venerable places. Neither the 
one nor the other can renounce the privileges attached 
to the shrine. The reason for this is not far to seek: 
in order to renounce a privilege, the first requisite is 
that the privilere be a personal right over which one 
has control. In the case of sacred places, the use at 
most of the privilege is conceded to the caretaker.” 
Should he be removed, the use of the privilege passes to 
his successor. 

The Code, therefore, is explicit in denying to pri- 
vate persons the capacity of renouncing privileges grant- 


50 Frequently not even the full use of the privilege is granted to the 
caretakers of shrines. For instance, at the shrine of Our Lady of 
Perpetual Help, the resident Redemptorists are allowed to celebrate 
the special votive mass but once a month, while visiting priests can 
celebrate this mass on almost every double feast. 


116 Principles of Privilege According to the 
Code of Canon Law 


ed to a community, dignity, or place. But can a commu- 
nity itself renounce a privilege? It is clear that a dig- 
nity, or a place cannot renounce its privileges since it is 
a non-collegiate moral person. A collegiate moral per- 
son, however, such as a religious community has an 
active voice in regard to its fortunes. The Code does 
not expressly concede renunciation of privileges to a 
community. Yet in denying renunciation in certain in- 
stances, the Code implies the faculty of renunciation in 
non-prohibited cases. 

In the old law, Reiffenstuel®! maintained that a moral 
person could renounce its privileges. This eminent can- 
onist based his conclusion on decisions of Pope Innocent 
II1.5* Since the publication of the Code, Blat®? deduces 
this faculty from a comparison of paragraphs 3 and 4 of 
eanon 72. Indeed it would be difficult to see how renun- 
ciation could be conceded to an individual person and 
denied to a community, or assembly acting as a unit.™* 
It is understood, of course, that the privilege is one of 
the proper sense of the word, entirely excluding favor- 
able laws. Positive legislation may limit the exercise 
of renunciation because of possible loss to a third party, 
or prejudice of other rights. Canon 72 does, in fact, 
thus limit renunciation of privileges. , 

There are two instances when a community, or an 
assembly cannot renounce its privileges. The first in- 
stances concern the privileges granted by law. Parti- 
cular law is meant here. Arguing from the prohibition 
enjoined on renunciation of privileges granted in com- 
mon law, the reason for the incompetency of the commu- 
nity in the ease at hand becomes evident. Particular 
law differs widely from particular concession. All the 





51 Reiffenstuel, o.c., lib. V, tit. XXXITI, n. 195. 

52 C. 8, X, de constitutionibus, I, 2; c. 22, X, de praebendis et dignitati- 
bus, III, 5. 

53 Blat, o.c., v. I, n. 140. 

54 Maroto, o.c., v. 1, n. 301, 


Principles of Privilege According to the 117 
Code of Canon Law 


elements of a law are found proportionately in the 
former, while some of the essential notes of a law are 
lacking in the latter. That a particular law should grant 
a privilege, does not destroy its juridical character. 
Hence if it were possible to renounce the privilege thus 
obtained from particular law, renunciation of the law 
itself would be involved. Therefore, the subject of a 
privilege cannot renounce the favor which constitutes 
the particular law. 

Let this reasoning be applied to a concrete case. 
The Code prescribes a definite form of election.’ An 
Order, however, may have a different and perhaps sim- 
pler form prescribed in its constitutions. The Holy See 
approves the constitutions thereby making them law for 
the community. In this case the Order is not permitted 
to renounce the form of election approved in the Rule. 
Other instances are found in particular prescriptions 
in approved constitutions concerning terms of office, age 
of Superiors, officials, ete. 

The second ease in which renunciation of privileges 
is denied to a community, or an assembly occurs when 
such renunciation would entail prejudice to the rights of 
the Church, or some other third party. In this instance 
the question of particular law does not enter. Consid- 
eration is confined to privileges in the strict sense of the 
word. The restriction placed on renunciation here is 
derived from the necessity of protecting the rights of 
interested parties.°° No third person should suffer be- 
cause a community chooses to divest itself of a privi- 
lege. Thus, two distinct communities may have obtained 
the privilege of soliciting alms. One of these communi- 
ties finds that it does not need this support and decides 
to renounce its privilege. If it should do so a direct, 
or at least an indirect loss may be suffered by the second 





55 Can. 161-178. 
. 56 Reiffenstuel, o.c., lib. V, tit. XX XIII, n. 196. 


118 Principles of Privilege According to the 
Code of Canon Law 


community, either by positive pressure brought to bear 
upon it to renounce its privilege, or by loss sustained 
because former contributors may think that it too has 
renounced its privilege. Distinctions will not always be 
made between community and community, and if one 
no longer solicits alms, contributors may well think that 
the other has acted similarly, thus entailing diminution 
of necessary support. If this loss be considerable, the 
now self-supporting community cannot renounce its 
privilege. Interested parties, however, for whose bene- 
fit such renunciation is forbidden need not be commu- 
nities, or moral persons. Any one at all who will suffer 
considerably has rights which must be protected. 


3. Loss of Privileges by reason of the Grantor’s 
loss of Power. 


Can. 73. Resoluto iure concedentis, privilegia non 
exstinguuntur, nisi data fuerint cum clausula: ad bene- 
placitum nostrum, vel alia aequipollenti. 


Privileges granted by a Superior are usually not 
affected by his subsequent loss of power. This loss of 
authority may result from transfer, resignation, removal 
or death. Whatever be the cause of the loss of jurisdic- 
tion, privileges granted under the Superior are unaffect- 
ed unless the rescript, or verbal concession definitely pro- 
vided that the privilege is to be affected by the fortunes of 
its author. The Code suggests the formula ad benepla- 
citum nostrum. A similar expression would be quamdiu 
sum Superior, or, donec vixero. 

The formula ad beneplacitum Sedis Apostolicae, or, 
simply, ad beneplacitum Sedis would not be of the same 
force, because the Apostolic See does not cease with the 
death of the Holy Father.*” Boniface VIII defines the 
issue clearly in one of his decretals: Si gratiose tibi a 





57 Barbosa, 0.c., De clausulis usufrequentioribus, Claus, III, n. 5, 


Principles of Privilege According to the 119 
Code of Canon Law 


Romano Pontifice concedatur, ut beneficia, quae tempore 
tuae promotionis obtinebas, posses usque ad suae volun- 
tatis beneplacitum retinere: huiusmodi gratia per eius 
obitum, per quem rpsius beneplacitum omnino exstin- 
guitur, eo ipso expirat. Secus autem, si usque ad apos- 
tolicae sedis beneplacitum. gratia concedatur praedicta. 
Tune enim, qua sedes ipsa non moritur, durabit per- 
petuo, nist a successore fuerit revocata.®® 

Canon 73 exemplifies the general principles govern- 
ing the extinction of rescripts.®? A review of the exer- 
cise of these principles will help to understand their 
application to privileges. 

Lucius III, in writing to the Archbishop of Canter- 
bury and his Suffragans stated that a Papal reseript did 
not cease with the death of the Pope, provided litigation 
had begun.” A decision of Boniface VIII approaches 
more closely to the matter of privileges: Si super gratia, 
cuiquam ab apostolica sede facta, exsecutores\ fuerint de- 
putati, aequum esse censemus, ut, sicut ipsa gratia, licet 
non sit in eius exsecutione processum, morte non perimi- 
tur concedentis, sic nec etiam re integra perimatur exse- 
cutoribus data potestas, quam, veluti gratiae praedictae 
aiccessoriam, naturam sequi congrut principalis; ne 
gratiam eandem vel reddi quandocumque omnino muti- 
lem, vel ipsius effectum in tempus longius cum ilius 
dispendio, cui facta existit, differrt contingat.” An- 
other decision of the same Pontiff concerns a privilege 
granted by the Holy See to select a worthy beneficiary 
in a certain church. The restriction of the concession is 
expressly stated in the text. Huiusmodi concessio, quam, 
quum specialem gratiam contineat, decet esse mansuram, 
non expirat etiam re integra per obitum concedentis. 
Secus, si super provisione certae personae facienda sit 
58 C. 5, de rescriptis, I, 3 in VI. 

59 Can. 61. 


60 ©. 19, X, de officio et potestate iudicts delegati, I, 29. 
61 ©. 9, de officio et potestate iudicis delegati, I, 14 in VI. 


120 Principles of Privilege According to the 
Code of Canon Law 


data potestas eidem non ob suam, sed evs, cur providerr 
mandatur, gratiam vel favorem; ila quidem exspirat 
omnino, si concedens re integra moriatur.” 

It is hardly necessary to state that the clause ad 
beneplacitum meum, or its equivalent must be evident. 
This clause is never presumed.” 


4. Loss of Personal Privileges. 


Can. 74. Privilegium personale personam sequitur 
et cum ipsa exstinguitur. 


Canon 74 distinguishes between the use and the ex- 
tinction of personal privileges. The use of personal 
privileges was already seen in the chapter on the use of 
privileges.* Attention at present will be confined to 
the loss of personal privileges. 

The personal privilege meant in canon 74 is of the 
elass known as individually personal privileges. Such 
privileges are attached to the physical person of the 
grantee. They are conceded as a favor to the individual 
himself without any reference at all to the office, or dig-— 
nity which he might hold. Hence the reason for the con- 
cession of such privileges ceases with the death of the 
grantee, and does not pass to his heirs, or successors. 

A personal privilege which a grantee may possess 
in common with other beneficiaries also ceases with the 
death of the grantee, provided the matter of the privi- 
lege is divisible. But should the privilege be conceded 
rather to an association, the privilege would not cease 
with the extinction of one of the grantees. 

Privileges accruing to physical persons by reason 
of their state, office, or dignity are not considered strictly 
personal privileges in the sense that they cease with the 





62 C. 36, de praebendis et dignitatibus, III, 4 in VI. 
63 R.J. 15 in VI. 
64 Cf. p. 87, et seq. 


Principles of Privilege According to the 121 
Code of Canon Law 


death of the physical person, or grantee. Commonly 
personal privileges, then, such as the privileges of Car- 
dinals and Bishops do not cease with the death of the 
Prelate. These privileges, however, must be considered 
personal at least in the sense that their use is legitimate 
wherever the grantee happens to be. The privilege of 
‘blessing rosaries, for instance,® can be used lawfully in 
any place. 


0. Loss of Real Privileges. 


Can. 75. Privilegia realia cessant per absolutum rei 
vel loci interitum; privilegia vero localia, si locus intra 
quinquaginta annos restituatur, reviviscunt. 


Altho the formal aspect of a real privilege has al- 
ready® been explained, it is well to recall its relation to 
‘the physical beneficiary who enjoys its rights. A physi- 
eal person may enjoy a privilege granted in his own 
name, or he may enjoy a privilege by reason of his 
office, or in a general way, by reason of his connection 
with a dignity, place, community or assembly. In the 
latter instances the privilege adheres to the dignity, ete., 
while its use, and benefit accrues to the occupant of the 
dignity, etc. Such a privilege is called a real privilege 
(from Lt., res). This res can be anything which is not 
a physical ecclesiastical person :® hence, sacred objects, 
places, dignities, offices, assemblies, communities, ete. 

Real privileges are lost by the absolute destruction 
of the thing or place. This principle offers no difficul- 
ties except for the correct interpretation of the word 
‘‘absolute.’’ A thing, e. g., a sacred image, church, can 
be said to be absolutely destroyed when it is substantially 
destroyed. A place can be considered in the same light. 
Hence it is not necessary in every case that the thing 





65 Can. Gee § 1, n. 5 for Cardinals; can. 349, § 1, n. 1 for Bishops. 
66 Cf. p. 
67 Gheorha’ 0.c., p, 304, 


122 = Principles of Privilege According to the 
Code of Canon Law 


or place be so completely obliterated that scarcely any 
trace of its former existence remains. The other extreme 
must likewise be avoided. Therefore, the partial de- 
struction which would demand the reconstruction of a 
church would not yet deprive the church of its privi- 
leges. 

It is worth while remarking here, with Blat®® and 
Cicognani,” that the unsuitability of a place in regard 
to its first purpose does not cause a loss of its privi- 
leges. Thus, owing to some calamity, a church may be 
roofless, or without a sanctuary. Holy Mass, perhaps, 
could not well be celebrated in such a church for reasons 
of respect for the August Sacrifice, or because of possi- 
ble danger to life. No matter how long this condition 
remains, the church’s privileges would be intact. Its de- 
struction is not absolute. 

The absolute destruction of a thing will in many 
cases depend upon its nature. Actual physical destruc- 
tion can occur to sacred objects, such as statues, crosses, 
ete. Their privileges cease with the destruction of the 


thing. Sale of these articles will also cause a loss of 


indulgences.” Dignities and offices can be suppressed 
by proper authority. When this happens, the privileges 
cease.“1. Assemblies which are not juridical moral per- 


sons can be dissolved. Their privileges are lost at. 


dissolution. Communities, however, and all moral per- 
sons can be suppressed by legitimate authority, or cease 
by the defection or death of its members. If the moral 
person is suppressed its privileges cease at once, but if 
death, or defection from membership intervenes, the 
moral person is juridically considered to exist for an- 
other hundred years,” and therefore its privileges con- 





68 Blat, o.c., v. I, n. 143. 
69 Cicognani, o.c., p. 304-5. 
70 Can. 924, § 2. 

71 Ayrinhae, o.c., n. 165, 
72 Can, 102, $1. 


Principles of Privilege According to the 1a 
Code of Canon Law 


tinue for that length of time. According to canon 102, 
§ 2 as long as one member of the moral person lives, all 
the rights of the association accrue to him. 

As far as the principle of cessation is concerned, 
the absolute destruction of a thing terminates its privi- 
leges. But the Code makes an exception for real privi- 
leges attached to a place. These are the so-called local 
privileges. The restitution of a local privilege is called 
reviviscentia. This restitution of local privileges cunies 
from the fact of rebuilding the place, and is not due to 
a new concession of privileges. 


Formerly there was no definite time during which 
local privileges could be revived. As long as there was 
hope of rebuilding a place its privileges were not irre- 
trievably lost. Now, however, a period of fifty years is 
allowed before local privileges finally lapse. Since the 
fifty years’ grace will scarcely begin with the horological 
computation of the day, the first day of destruction is 
not counted and the time expires with the end of the last 
day of the time-allowance. 


An application of the exception in favor local privi- 
leges is found in canon 924, § 1. Indulgences which were 
attached to a church revive, if the church is rebuilt within 
fifty years. This is true even if the church had been 
totally destroyed, as may happen by earthquake, or fire. 
Besides the condition of time, two other conditions must 
be fulfilled: first, the church must be rebuilt in the same 
place, or in nearly the same place where the destroyed 
church stood, and second, the church must be rebuilt 
under the same title”? Non-fulfillment of these condi- 
tions will cause the privileges of the church to cease en- 


tirely. 





73 Can. 924, §1. Ad norman can 75, indulgentiae adnexae alicut ecclestae 
non cessant, si ecclesia funditus evertatur rursusque intra quinqua- 
ginta annos aedificetur in eodem vel fere eodem loco et sub eodem 
titulo. 


124 Principles of Privilege According to the 
Code of Canon Law 


An understanding of the provisions of canons 75 and 
924 will be valuable to a priest, or a community who may 
take over a ruined church and attempt to rebuild it. 
Often enough in times of war, and otherwise unsettled 
‘conditions a community or secular priest may be driven 
from his church and the building destroyed. The same 
resident community or priest may never return, but the 
ruined church might be rebuilt under different auspices. 
If the list of privileges were preserved, and the accu- 
rate date of the church’s destruction known, the matter 
of privileges would be greatly simplified, many doubts 
and seruples avoided, and beneficent indulgences gained. 
The privileges, however, which belonged to the commu- 
nity itself would not be regained unless the same com- 
munity returned.” 


6. Loss of Privileges by Non-use, or by Con- 
trary Use of a Privilege. 


Can. 76. Per non usum vel per usum contrarium 
privilegia aliis haud onerosa non cessant; quae vero in 
aliorum gravamen cedunt, amittuntur, si accedat legiti- 
ma praescriptio vel tacita renuntiatio. 


Canon 76 distinguishes between privileges which do 
not curtail the rights of interested parties, and privi- 
leges which cause some diminution of these rights. The 
former class of privileges do not cease by non-use, or 
even by contrary use, while the latter are lost by pres- 
cription, or by tacit renunciation. 

Non-use of a privilege is the free selection to omit 
exercising the right conceded by the privilege. All vio- 
lence, or force of any kind must be excluded from any 
influence on the grantee’s action. He must be free to 
exercise his right if he cares to do so. If the grantee 
should be forced to omit, or to forego his rights, the 





74 ASS. v. I, p. 239. 


Principles of Privilege According to the 125 
Code of Canon Law 


material act would indeed be non-use of a privilege, but 
the formal and determining character of the act would 
be lacking. This freedom from coaction is alike necessary 
in both classes of privilege distinguished in canon 76, 
but only in the second part of the canon does it bear any 
direct relation to the retention, or loss of a privilege. 
Since non-onerous privileges are not lost by non-use, it 
would be of no importance to stress the necessity of free- 
dom of action. 


Contrary use means that the person who enjoys a 
right by means of a privilege chooses to do the opposite. 
Contrary use is more than mere non-use of a privilege. 
The latter is in a sense negative, while the former re- 
quires a positive act opposed to the provisions of the 
privilege. Thus, for instance, a family may enjoy the 
privilege of a private oratory. Holy Mass, then can be 
celebrated in the oratory according to the stipulations 
of the rescript. Usually, high festivals will be excluded 
from the days on which Mass is allowed in such an ora- 
tory, but this is a detail which will not affect the mat- 
ter at hand. Now, understanding the provisions of the 
privilege, the family elects to attend Mass at the parish 
church. If this happens consistently, the family is pre- 
sumed to be acting contrary to its privilege. For the 
sake of illustration, all excuses are excluded, such as 
inability to secure a priest, special solemnity at the 
parish church, ete. Freedom of action, spoken of in re- 
gard to non-use of a privilege is equally applicable here. 
iA person forced to forego his rights, and perform some 
opposite action cannot be said to act in a formal way 
contrary to his privilege. 

With all this in mind, canon 76 can be examined. A 
word or two will suffice for the first part of this canon. 
Non-onerous privileges do not entail loss of rights, or 
increased duties on the part of a third person, and con- 
sequently, this third person’s status is in no way affected 


126 = Principles of Privilege According to the 
Code of Canon Law 


by the non-use, or contrary use of a privilege. In such 
circumstances there would be little reason to penalize a 
grantee if he did not care to use his privilege. Non- 
onerous privileges, such as celebrating Mass on a port- 
able altar, or gaining special indulgences, come under 
this head and would not cease by non-use, or contrary 
use. 

The second part of canon 76 stipulates how onerous 
privileges are lost. Occasional non-use, or contrary use 
of these privileges does not argue their loss. Even pro- 
tracted omission, extending over the period of some 
months, does not cause the loss of these privileges. Since 
the Code opposes prescription to non-use, and tacit re- 
nunciation to contrary use, it will be best to consider the 
items separately. 

Prescription is the acquisition of rights, or the liber- 
ation from burdens by means of the transfer of rights, 
or the cancellation of burdens. Prescription supposes 
a just title, possession, and a definite period of time.” 
In the matter at hand, prescription is limited to the rights 
coneeded by a privilege. From these rights release ts 
sought by a third party. Such prescription is called lib- 
erative prescription. The time required for liberative 
prescription is the same as is necessary to acquire a 
privilege by prescription. Therefore thirty years of 
non-use of a privilege by a moral person will cause its 
loss by liberative prescription.”® 

Tacit renunciation is present when a privileged per- 
son can use the favor granted him but elects to do some- 
thing else. His intention to renounce his privilege is 
gathered from the protracted contrary use of the privi- 
lege he possesses. Acting in accordance with this pre- 
sumed intention, the legislator reduces the relation be- 
tween the privileged person and interested parties to 





75 Cf. pp. 65-66. 
76 C, 1511; cf. Cicognani, 0.¢., p. 307. 


Principles of Privilege According to the 127 
Code of Canon Law 


the requirements of law.” The same time is required 
for liberation by tacit renunciation as is necessary for 
release by means of prescription. It is important, how- 
ever, to remember that the grantee must be capable of 
renouncing his privilege. He cannot, even tacitly, re- 
nounce a privilege which is not entirely his own. 


7. Loss of Privileges because of altered Cir- 
cumstances ; lapse of time; and exhaus- 
tron of the number of Cases. 


Can. 77. Cessat quoque privilegium, si temporis 
progressu rerum adiuncta sic, iudicio Superioris, immu- 
tentur ut noxium evaserit, aut eius usus illicitus fiat; item 
elapso tempore vel expleto numero casuum pro quibus 
privilegium fuit concessum, firmo praescripto can. 207, 
§ 2. 

Circumstances, not existing at the time when the 
privilege was conceded, can often so change the beneficial 
aspect of a privilege so as to render it seriously harm- 
ful.“® To allow the use of a privilege under such unto- 
ward circumstances would be legally wrong.” A moral 
obligation to revoke or cancel the privilege would also 
exist, but this question is foreign to the present study. 

The legal aspect of the case ought to be emphasized. 
An example from the Decretals will set the matter in its 
proper light. 

A privilege of not contributing tithes had been 
granted to some monasteries long before the days of 
Pope Alexander III. The condition of the monasteries 
at the time of the concession of the privilege was such 
that no scandal would arise if they were exempted from 
legitimate tribute. With spread of monasticism, and 
with the broad lands bequeathed to deserving monas- 





77 Cicognani, o.c., l.c. 
78 Raus, o.c., n. 40, IV. 
79 Ballerini-Palmieri, o.c., v. I, n. 392. 


128 Principles of Privilege According to the 
Code of Canon Law 


teries by friends, the continued use of the privilege non 
solvendi decimas became a serious burden on some other 
houses of monks. Naturally it was only a question of 
time before the matter came to the attention of the Pope. 
Alexander III writes that many complaints had come to 
him on this head, and as a consequence he urged a com- 
promise so that justice might be served on all sides, and 
the good name of the monks preserved: Quia vero non 
decet honestatem sive religionem monasticam litibus et 
contentiontbus mtendere, Discretion: vestrae per apos- 
tolica scripta mandamus, consulimus, et hortamur, qua- 
tenus cum praedicto abbate et fratribus super upsis deci- 
mis et alus, unde inter vos est controversia, pacifice com- 
ponatis, ne pro huusmodi contentionibus fama vestrae 
religionis valeat denigrari.*° 

Rule 61 of Sexto Bonifacii VIII is applicable here: 
Quod ob gratiam alicuius conceditur non est in etus dis- 
pendium retorquendum. 

Besides rendering a privilege directly harmeyie a 
change of circumstances may make the use of the privi-. 
lege illicit. This may happen without any abuse of the 
privilege and be due to circumstances over which the 
grantee has no control. The reason for the loss of the 
privilege in this case is evident. The Superior clearly 
could not concede a privilege under such unlawful con- 
ditions. 

The judgments of men vary, and what seems harm- 
ful, or unlawful to one may not be so to another. Hence 
the wise provision of the Code in determining who is the 
judge in this matter. The Superior of the grantee is the 
sole judge. Consequently, his judgment must be fol- 
lowed, no matter what interested parties may think of 
the justice of his decision. However, a Superior should 
consider the character of the individual privilege. Odious 
privileges necessarily entail some injury to the rights 





80 ©. 9, X, de decimis, primitis et oblationibus, III, 30. 


Principles of Privilege According to the 129 
Code of Canon Law 


of others. This element was already considered when 
the privilege was granted. Allegation of no more in- 
Jury than this can scarcely demand the cancellation of a 
privilege. 

The second part of canon 77 is so clear that comment 
is unnecessary. But it might be said that these provi- 
sions concerning lapse of time, and completion of cases, 
refer primarily to the habitual faculties considered in 
canon 66. 

An extension of the faculties conceded for the in- 
ternal forum is granted in canon 207, § 2. The condition 
stated there must be fulfilled. Not every act beyond 
the time or case limit is valid but only those which occur 
thru inadvertence. Hence, if an Ordinary or his delegate 
inadvertently went beyond these limits of his faculties, 
thinking he had a longer time, or a larger number of 
eases, his acts would be valid. The case would not be 
the same if an Ordinary, realizing that his faculties had 
expired, nevertheless acted because of an oversight in 
not requesting renewal of his faculties in seasonable time. 
But in some instances, canon 81 could be invoked and the 
acts thereby rendered valid.® 


8. Abuse of a Privilege. 


Can. 78. Qui abutitur potestate sibi ex privilegio 
permissa, privilegio ipso privari meretur; et Ordinarius 
Sanctam Sedem monere ne omittat, si quis privilegio ab 
eadem concesso graviter abutatur. 


Properly speaking, an exposition of possible abuses 
of privileges has no place in a chapter on the loss of 
this place. 


81 Can. 81. A generalibus Ecclesiae legibus Ordinarii infra Kkomanum 
Pontificem dispensare nequeunt, ne in casu quidem peculiart, mist haec 
potestas eisdem fuerit explicite vel implicite concessa, aut nist dif- 
ficilis sit recursus ad Sanctam Sedem et simul in mora sit periculum 
gravis damni, et de dispensatione agatur quae a Sede Apostolica 
concedi solet. 


130 Principles of Privilege According to the 
Code of Canon Law 


privileges. However, there is a connection of cause and 
usual effect which justifies the treatment of canon 78 in 

Gratian relates a classical example of an abuse of a 
privilege. The Bishop of Ravenna enjoyed the privilege 
of consecrating Bishops. But by an abuse which Pope 
Gregory called ‘‘amentia’’ the Bishop consecrated an un- 
willing cleric. The decree recorded by Gratian on this 
incident almost supplies the initial words of canon 78. 
The penalty in this case was not drastic, but no doubt 
was left in the mind of the offending Prelate what would 
happen if the deed were repeated. 

Passing from the principle to be followed as enun- 
ciated in Gratian’s collection of decrees, one finds con- 
crete examples of condign punishment meted out to those 
who abused the rights granted to them by a privilege. 
Gregory IX in his letter to the Bishop of Paris enumer- 
ates abuses which entail the loss of privileges.** Inno- 
cent IIT deprived the canons of Siena of the privilege of 
election.5* The same Pontiff tempered the privilege of 
obtaining the revenues from non-resident benefices. This 
privilege had been conceded to some students who could 
not reside at the place of their benefices and at the same 
time continue their studies. In order to foster study, 
the onus of residence was alleviated. But instead of 
using their time for study, a number of the students 
enjoyed a vacation at a villa, or at some other place less 
conducive to study. The Pope ruled that this was an 
abuse of the privilege and consequently decreed that the 
revenues of the benefices would not accrue to the absen- 
tees.*° Another case decided by Innocent III concerned 
the abuse of a privilege which did not allow a transfer 


82 ©. 7, D. LXXIV. Denunciamus autem, quod, si post haec aliquid tale 
presumpseris, et aliquem seu episcopum, vel presbiterum, vel diaconum 
invitum facere forte crederis, ordinationes tibi Ravennatis ecclesiae 
vel Emiliensis noveris auferendas. 

83 C, 43, X, de rescriptis, I, 3. 

84 C. 2, X, de postulatione praelatorum, I, 5. 

85 C. 12, X, de clericis non residentibus in ecclesia vel praebenda, III, 4. 


Principles of Privilege According to the 131 
Code of Canon Law 


from one religious Order to another. The abuse of the 
privilege consisted in denying transfer to a stricter Or- 
der when the religious, actuated by pure motives, wished 
to lead a more mortified life. In this instance the Pope 
did not revoke the privilege but plainly stated the limits 
within which it would have to be used, recalling to the 
mind of the offending Superiors privilegium meretur 
amittere qui sibi concessa abutitur potestate.® 

The abuse in these cases, as in others, consisted in 
acting beyond the legitimate provisions of a privilege.** 
If it be remembered what a privilege is, and how the very 
concession of a privilege depends on the will of a Su- 
perior, it will readily be seen what a travesty of justice 
is involved in an abuse of a privilege. Yet despite this 
injustice, abuse of itself does not cancel a privilege for 
the reason that an express, or tacit act of the Superior 
is necessary to obtain this end. Occasionally, too, an 
abuse may result from a misunderstanding of the terms 
of a privilege with little or no bad will at all attached to 
the action. In such a case it is fitting that a Superior 
decide the extent and possible malice of the abuse. 

In order to correct the abuse of a privilege, it is 
necessary that the proper Superior become acquainted 
with the abuse. If the abuse occurs within the Superior’s 
immediate vision, he can take suitable action at once. 
But often enough abuses will occur in such a way that 
the proper Superior will remain in ignorance of them. 
Hence, in the matter of Papal privileges, the Code de- 
mands that Ordinaries advise the Holy See of abuses 
of privileges. All Superiors who come under the name 
‘‘Ordinary’’ ® are included. 

The denunication is to be made to the Holy see 
both when the abuse is connected with a personal privi- 





86 ©. 18, X, de regularibus et transeuntibus ad religionem, III, 31. 
87 Zoesius, o.c., lib. V, tit, XX XIII, n. 38. 
88 Can, 198, $1, 


132 Principles of Privilege According to the 
Code of Canon Law 


lege and when the community itself is at fault. Abuses 
of local privileges must likewise be reported. 

There is a word in canon 78 which argues for pru- 
dence. A privilege must be abused graviter before the 
offense ought to be reported to the Holy See. Hence 
some slight excess would not call for vigorous action. 
Of course, what is to constitute a serious abuse must be 
left to the judgment of the Ordinary who detects it. 
Once the report has been made, the Holy See will weigh 
the matter justly and act accordingly. 


CHAPTER VIII 
PROOF OF A PRIVILEGE. 


Canon 79. Quamvis privilegia, oretenus a Sancta 
sede obtenta, ipsi petenti in foro conscientiae suffragen- 
tur, nemo tamen potest cuiusvis privilegii usum adversus 
quemquam in foro externa vindicare nisi privilegium ip- 
sum sibi concessum esse legitime evincat. 


The element of proof does not touch the nature of a 
privilege. It is one thing to enjoy the possession of a 
favor, and quite another to defend it with a proper docu- 
ment, or a sufficient number of witnesses. It should not 
be said that the lack of documentary evidence, or the 
absence of witnesses, precludes all use of a privilege. 
Many cases can and will arise when such proof would 
not be necessary. 

Canon 79 says that verbal privileges, granted by the 
Holy See, are of value in the forum of conscience. This 
means that such privileges can be used without scruple 
as long as their use does not extend beyond the limits of 
this forum. It matters little whether the concessions be 
temporary, or perpetual.’ 

There is no intrinsic difference in the value of verbal 
and written privileges.2, Whatever practical utility a 
document may bring to a privilege, or whatever testi- 


1 The Ordo Servandus, published by the Cardinal Secretary of State, 
contained practically the same words as Canon 79. Gratiae, quas 
quis pro se a Sancta Sede oretenus assequitur, ipst petentt in foro 
conscientiae suffragantur. Nemo tamen potest cuiuscuwmque privilegw 
usum adversus quemquam vindicare, nisi privilegium ipsum legitime 
probet. Ordo servandus in S. Congregationibus, Tribunalibus, Offictis 
Romanae Curiae, 29 Sept., 1908, Pars II, Normae peculiares, cap. iii, 
n. 2, in Martin, o.c., p. 364. The Code in adding in foro externo, 
limits the necessity of proof to the external forum only. 

2 Reiffenstuel, o.c., lib, V, tit. XX XIIT, no. 150. 


[ 133 ] 


134. Principles of Privilege According to the 
Code of Canon Law 


mony approved witnesses may offer in support of a 
privilege, the advantage derived does not affect the essen- 
tial characteristics of a privilege. This follows as a 
logical consequence of the non-necessity of writing in 
the concession of a privilege. 

In the external forum, however, it is necessary to 
prove a privilege in order to defend its use.* Since the 
external forum may be either judicial or extra-judicial, 
proof of a privilege is required for both. It is clear 
enough that proof should be of necessity in the matter 
of a trial so that a proper judgment may be rendered. 
But Innocent X went beyond this. In his constitution, 
Cum sicut, May 14, 1648, he demanded proof of privi- 
leges also in an extra-judicial matter. The question was 
proposed thus: An privilegia, quae conceduntur contra 
jurisdictionem Ordinarwu et quibus gaudent, et gaudere 
practendunt Regulares praedicti (missionaries in India) 
debeant E'piscopis notificart, sive insinuart? The answer 
given by Pope Innocent was: Regulares tenert hujyusmods 
privilegia Episcopo exhibere, si eis uti voluerint.s This 
was only a particular case and, it might be objected, one 
in which an Episcopal power was infringed, and hence 
could not be adduced as a principle to govern all cases. 
Yet if it be observed that the answer of Pope Innocent 
is nothing more than a rational statement made to pre- 
vent indiscrimate and unrestrained assertions of privi- 
lege by which rights of interested parties might be wan- 
tonly abused, it will be seen that the Pope is merely 
applying a principle of justice and prudence rather than 
excogitating a rule to fit an individual case. 

The Decretals are not lacking in examples which im- 
ply the same necessity of legitimate proof of privilege. 
In the time of Alexander III some churches paid an an- 
nual tribute to the Holy See. Some thought that this 





3 Craisson, o.c., v. I, n. 163; Makee, o.c., v, I, n. 316. i 
4 Fontes, n. 232, . 3 


Principles of Privilege According to the 135 
Code of Canon Law 


tribute gave them the privilege of exemption from the 
jurisdiction of the diocesan Bishop. The Pope admitted 
that this privilege might have been granted, but it did 
not follow as a necessary consequence from the donation 
made to the Holy See. Therefore: Inspicienda sunt ergo 
ipsarum ecclesiarum privilegia, et apsorum tenor est dili- 
gentius attendendus, ut, si fuerit deprehensum, quod 
ecclesia, quae censum solvit, specialiter B. Petri iuris 
existat, et ad ndictum perceptae libertatis census annuus 
conferatur, non wmmerito poterit specialt praerogativa 
gaudere. Si vero ad indicium perceptae protectionis cen- 
sus persolvitur, non ex hoc wri diocesan episcopr ali- 
quid videtur esse subtractum.° 

Boniface VIII stresses the same necessity of proof 
of privilege. Without mincing words, and stating his 
reasons clearly, the Pontiff writes: Quum personae ec- 
clesiasticae tam religiosae quam saeculares plura praes- 
umant, quae ipsis infamiam pariunt, et aliis inferunt 
laesionem, praetextu exemptionis vel libertatis, quam 
asserunt se habere, ordinariorum correctiones et ordi- 
nationes subterfugientes, ac eorum forum sive wdicium 
declinantes: nos, volentes super hoc de salubri remedio 
providere, statuimus, ut hi, qui asserunt per privilegia 
seu indulgentias apostolicae sedis exemptos, a locorum 
ordinartis requisiti huiusmodi privilegia vel imdulgen- 
tias, quibus se dicunt fore munitos, ipsis ordinarus im 
loco congruo et securo, aut aliquibus prudentibus vIris 
omni suspicione carentibus, ad hoc per dictos ordinarios 
deputatis, infra terminum competentem, pro facti quali- 
tate ipsorum ordinariorum vel delegatorum sworum arbt- 
trio moderandum, iusto impedimento cessante ostendere, 
ac ad legendum integraliter exhibere, nec non de artic- 
ulis, de quibus controversia fuerit, transcriptum tradere 
teneantur.® 


5 C. 8, X, de privilegiis et excessibus privilegiatorum, V, 33. 
6 ©. 7, de privilegiis et excessibus privilegiatorum, V, 7, in VI. 


136 «Principles of Privilege According to the 
Code of Canon Law 


Cocchi’ mentions three ways in which, ordinarily, 
the existence of a privilege may be proved. Witnesses 
ean attest the concession of a privilege provided they are 
above suspicion. ‘Two witnesses at least are required, 
especially in judicial matters,® since one witness ordinar- 
ily does not supply sufficient proof.° 


Canons 1789-1791 give indications of how the faith 
of witnesses is to be tested. Altho these canons primarily 
refer to judicial processes, the suggestions offered might 
well be followed in weighing evidence procured in extra- 
judicial matter." 


Prescription is the second method of proving a privi- 
lege mentioned by Cocchi. All the requisites described 
and explained in a former chapter" will have to be con- 
sulted. 


The third method of proving a privilege is by docu- 
ment. This is the most satisfactory method. Possible 
suspicion of collusion in the case of witnesses, or possible 
bad faith unable to be detected in the case of prescription, 
hardly have any oceasion to occur in the case of a docu- — 
ment. The document must, of course, be duly authen- 
iticated. If there should be question of authenticating an 
original oral grant, the Code prescribes who can act in 
this matter, but if the question should concern an exem- 


7 Cocchi, o.c., v. I, n. 123. 

8 CO, 23, 47, X, de privilegtis et excessibus privilegiatorum, V, 33. 

9 C. 1791, §1. Cf. Noval, o.c., n. 512; Sebastianelli, o.c., n. 150; Zoesius, 
6ie.; lib. V; tity XX XT ‘ne 4. 

10 Since Canon 1789 supplies a good criterion of the worth of a witness, 
it is well to quote the canon in full. In aestimandis testimoniis 
judex prae oculis habeat: 1. Quae conditio sit personae, quaeve - 
honestas et an aliqua dignitate testis praefulgeat; 2. Utrum de 
scientia propria, praesertim de visu et auditu proprio testificetur, 
an de credulitate, de fama, aut de auditu ab aliis; 3. Utrum testis 
constans sit et firmiter sibi cohaereat; an varius, incertus, vel vacil- 
lans; 4. Denique utrum testimonti contestes habeat, an sit singularis. 
Cf. Noval, o.c., n. 510; Lega, o.c., v. I, n. 490; Sebastianelli, o.c., 
n. 142, 148, 149, 

11 See chapter IV, p. 64, et seq. 


Principles of Privilege According to the 137 
Code of Canon Law 


plar of the original document, any canonical notary can 
attest it. 

Cardinals, by virtue of their privilege,’ can authen- 
ticate a document, testifying to a privilege granted by 
the Holy Father vivae vocis oraculo. The testimony of 
one Cardinal suffices. Secretaries of the Roman Congre- 
gations are similarly competent in affairs of their own 
congregation. 

Presumption can also serve to prove a privilege, 
especially if the presumption is legal according to Canon 
63, § 2. Such presumption cannot be attacked by mere 
denial. Unless the foundation of the presumption is dis- 
solved, the law demands that the disputed privilege be 
accepted as legitimately conceded.** 





caeet 239) 6 1, 0.217. ; 
13 Possessio centenaria vel immemorabilis inducit praesumptionem concessi 
privilegu. 


CHAPTER IX 
FACULTIES. 


Before attempting an exposition of Canon 66, which 
deals with habitual faculties, it will be well to set down 
a few introductory thoughts connected with faculties in 
general. 

The English word ‘‘faculty’’ is evidently derived 
from the Latin ‘‘facultas.’’ The latter term, retaining 
some resemblance to the old Latin spelling (facule-facile), 
is in turn based upon the word “‘facilitas.’’ There is a 
difference between the two Latin words which is appa- 
rent without any examination. ‘‘F'acultas’’ signifies a 
power, while ‘‘facilitas’’ denotes the ease with which a 
power can be exercised. 

A faculty, then, etymologically, means a power, or a 
capacity to perform some action. The scope of this ac- 
tion cannot be found in the root-meaning of the word 
‘‘faculty.’’ 

The exact time when the word ‘‘faculty’’ came to 
‘have a definite meaning in Canon law ean scarcely be 
assigned with any degree of accuracy. In 1622, when 
the Congregation for the Propagation of the Faith was 
instituted, the term ‘‘faculty’’ had already found its way 
into eanon Law. In its very first session, January 14, 
1622, the Congregation proposed to issue a Bull an- 
nouncing the erection of the Congregation cum suis fac- 
ultatibus et privilegus.! Missionary work, which the new 
Congregation was to supervise, had already existed for 
some time, and it would be well within reason to suppose 
that faculties were granted as soon as. the real need for 
them arose in missionary fields. Add to this the labors 





LI Colle. 
[ 138 ] 


Principles of Privilege According to the 139 
Code of Canon Law 


of Bishops and priests in Europe to bring back to the 
Church those who had fallen since the first signs of 
Luther’s rebellion and the origin of faculties may be 
sought a century earlier than 1622. 

That the concession of faculties demanded the great- 
est prudence is evident from the careful consideration 
accompanying the construction of the new formulas of 
1637." A middle path had to be followed between severity 
and laxity. In this document of 1637 the words ‘‘fac- 
ultas’’ and ‘‘formula’’ are used without any further at- 
tempt to clarify their meaning. 

In the same year, 1637, the Congregation of the Pro- 
paganda, realizing the insufficiency of the formulas then 
existing to meet the needs of missionaries, decided to 
settle upon some general rules to govern the concession 
of formulas containing faculties. These rules embodied 
consideration of the character of the people who were 
converted to the faith, their distance from the Holy See, 
the permission or prohibition to practice their faith, and, 
finally, the dignity and office of the grantee.* These gen- 
eral rules were to be supplemented according to indivi- 
dual needs. 

Altho for obvious reasons, the greater number of 
faculties came in part directly from the Congregation of 
the Propaganda, yet it must not be supposed that other 
Congregations, and Tribunals of the Roman Curia did 
not possess similar powers in their own proper spheres. 
The Holy Office, for instance, conceded faculties in mar- 
riage cases, while the Sacred Penitentiary was compe- 
tent in matters of the internal forum. Today, canons 
247-263 give the competence of the various Congrega- 
tions and Tribunals. 

The similarity of a ‘‘faculty’’ to a ‘‘privilege”’ 1s SO 
close that no proper definition seems to have been given 





2 Coll. n. 88. 
8 Coll. n. 87. 


140 Principles of Privilege According to the 
Code of Canon Law 


to the former before the appearance of Konings-Putzer’s 
Commentartum in Facultates Apostolicas. In this work 
a faculty is defined as Potestas, quam Superior ecclesias- 
ticus jurisdictione in foro externo praeditus cudam sibr 
aliquo modo subdito personaliter concedit, aliquid sive 
in foro conscientiae tantum sive etiam pro foro externo 
valide aut licite aut saltem tuto agendi.t Since then 
(1893), in a general way, authors have followed this defi- 
nition.® 

However, an observation may be made with Motry 
concerning the propriety of limiting the concession of 
faculties to superiors who enjoy jurisdiction in the exter- 
nal forum.® Canon 258 limits the jurisdiction of the 
Sacred Penitentiary to the internum forum, both sacra- 
mental and non-sacramental. Absolutions, dispensa- 
tions, etc., for this forum are granted by this Tribunal. 
Consequently, the Sacred Penitentiary is to be considered 
as the Superior for the internal forum even tho it has no 
jurisdiction in the external forum. In order, then, to 
include the concession of faculties granted by the Sacred 
Penitentiary, a change from jurisdictione in foro externo 
praeditus to jurisdictione mm foro respectivo praeditus 
ought to be made in the definition of ‘‘faculty.’’ 

A more detailed analysis of the various definitions 
of ‘‘faculty’’ is beyond the scope of this study.7 For 
the present purpose, the definition cited above with the 
correction in respect of Superiors will be found to ac- 
commodate all the grants known as faculties.® 

There are three principal divisions of faculties. In 
respect of the object of the grant, faculties are (a) 
jurisdictionales, (b) gratiae or licentiae, (c) ad caut- 





4 Konings-Putzer, Commentariwm in Facultates Apostolicas, (Neo- 
Eboraci, 1893) n. 1. 

5 E.g., Augustine, o.c., p. 159-161; Maroto, o.c., v. I, n. 294, 

8 Motry, Diocesan Faculties, (Washington, 1922) p. 9-10. 

7 Cf. Motry, o.¢., p. 7-19. 

8 Motry, o.c., p. 17, 


Principles of Privilege According to the 141 
Code of Canon Law 


elam.° The .first class comprise the most important 
group of faculties because they supply the necessary 
validity of an act. The second class presupposes the 
walidity of an act, but it grants permission to act. The 
third class may at times be real faculties, if the validity 
of an act would otherwise be wanting, but ordinarily 
faculties ad cawtelam are conceded to remove doubt, or 
to quiet uneasy consciences. 

In respect of duration, faculties may be actual or 
habitual according to the time, or number of cases for 
which the power is enjoyed. An actual faculty is limited 
to a single case. An habitual faculty is conceded for a 
certain length of time, or a definite number of cases. 

In respect of the Superior who concedes the faculties, 
the grants are Papal, or Episcopal. It is scarcely nec- 
essary to state that Papal faculties may be granted per- 
sonally by the Holy Father, or thru the competent Con- 
gregations or Tribunal. Episcopal faculties are granted 
by the Ordinary of the diocese. Praelati Regulares may 
also concede faculties. 

The general and particular extension of faculties, as 
well as the ordinary and extraordinary formulas like- 
wise supply a point of division according to which facul- 
ties may be considered.’° 

The interpretation of faculties follows the norms 
assigned to laws, rescripts, privileges, and clauses. This 
is the general principle which finds its application in 
regard to privileges in canon 67 of the Code. Privi- 
jegium ex ipsius tenore aestimandum est, nec licet wlud 
extendere aut restringere. The rule cited by Wernz,” 
facultates semper comprehensive, non extensive sunt im- 
terpretanda, is still in the main applicable to faculties as 





9 Wernz, o.c., v. I, n. 163. : ; 

10 Wernz, 0.c., l.c.; Vermeersch has two appendices in which he gives the 
faculties conceded to Nuntii, etc., and Ordinaries of mission coun- 
tries, v. I, n. 715-720. 

11 Wernz, o.c., v. I, n. 193, 


142 = Principles of Privilege According to the 
Code of Canon Law 


they exist today. General terms will demand broad com-. 
prehensive interpretation, provided the meaning of the 
terms is not extended beyond their natural and legal 
sense. 

Particular terms will receive a strict comprehensive 
interpretation. 

The present practice of the Roman Curia will often 
help to solve doubts concerning the interpretation and 
use of faculties. This ‘‘stylus’’ (and “‘praxis Curiae’’) 
consists of the rules derived from Papal constitutions, 
and from custom. According to these rules or norms the 
‘Curia conducts its work. Since the Roman Curia labors 
under the direct vigilance of the Pope, special import- 
ance is attached to the practice of his Curia. Diocesan 
Curias should presume that the Pope favors the same 
rules for them as he does for his own Curia. Apropos 
of this statement it is fitting to quote in full a question 
proposed to the Sacred Penitentiary: An Episcopus, 
quando vi specialis indulti Apostolici in aliquo wmped- 
aumento matrimonium dirimente dispensat, necessario et — 
ad valorem dispensationts sequi debeat easdem illas reg- 
ulas, quas in Curia Romana. observant, ubi ipse Summus 
Pontifex m eodem impedimento tisdemque impediment 
gradibus dispensat? The Tribunal answered, June 1, 
1858, Affirmative. 

This response seems to refer to both the object ‘of 
the dispensation and to the manner in which it is to be 
conceded. The Holy Office, however, tempered the an- 
swer to include the object only, provided the faculties did 
not require a precise method of concession.* 

Faculties cease in the same way as other privileges. 
Revocation, renunciation, lapse of time, completion of 
cases, all have their application here. A word, however, 
may be added in regard to revocation of faculties. Often 





12 In Konings-Putzer, o.c., n. 11. 
13 June 15, 1875, in Konings-Putzer, o.c., n. 12, 


Principles of Privilege According to the 143 
Code of Canon Law 


enough the faculties which an Ordinary receives will be 
communicated to a priest of his diocese. Now if the 
Ordinary’s faculties should be revoked, the priest would 
not thereby lose his faculties because he now possesses 
them in his own name.’* But if the revocation should be 
general, the communicated faculties would also cease. 

Can. 66, § 1. Facultates habituales quae conceduntur 
vel in perpetuum vel ad praefinitum tempus aut certum 
numerum casuum, accensentur privilegiis praeter ius. 

The question of privileges beyond the law is not so 
easy a matter to understand as would be supposed from 
the description of such a privilege as offered, for in- 
stance, by Reiffenstuel. Privilegium praeter ws is granted 
quando ipsamet materia, seu actus privilegu non est 
quidem i m se wre rahaeit is sed tamen non est nisi certis 
mpersoms concessus.” Ag an example of a privilege be- 
‘yond the law, Reiffenstuel offers the power of absolving 
from reserved sins, or, of dispensing, or any power of a 
similar nature. 

There is no doubt that there is a difference between 
privileges contrary to the law, and privileges beyond the 
law. But whether there is always a clearly defined root- 
difference between these two classes of privilege is an- 
other question. Reiffenstuel himself '® calls a privilege 
beyond the law a privilege, but he adds potius dicitur 
beneficium principis. 

Schmalzgrueber scarcely goes beyond Reiffenstuel’s 
definition of a privilege beyond the law.’” Like Reiffen- 
stuel he adds: privilegium praeter ius non est tta stricte 
privilegium sed potius dicitur beneficium principis, seu 
gratia ab isto concessa. 

Suarez!® taking up the idea of beneficium principis 





14 Motry, o.c., p. 39. 

15 Reiffenstuel, OG. okbaly, tit. XXXII, n. 7, 

16 Reiffenstuel, o.¢., lib. V, tit. XXXIII, 1G, 

17 Schmalzgrueber, 0.C., lib. V, tit. XXXII, n. 57-58. 
18 Suarez, o.c., lib. VII, cap. 1 ae. 


144 Principles of Privilege According to the 
Code of Canon Law 


claims that all privileges can be reduced to this concept. 
Therefore, merely because of the predominance of this 
element in privileges beyond the law, it would be im- 
proper to deny the name privilege to such privileges as 
powers of absolving, dispensing, ete. 

Wernz,’® who censures Hinschius’ absolute denial of 
prwilegia praeter ius, says multae facultates**** merito 
dicuntur privilegia qua constituunt leges priwatas con- 
cedentes specialem favorem, licet minus strictum. 

The authors just enumerated are indicative of the 
canonical doctrine taught before the Code.*° Hence, if 
Suarez be for the moment eliminated, it will be evident 
that Reiffenstuel and Schmalzgrueber teach that a privi- 
lege beyond the law is only improperly called a privi- | 
dege. Wernz will not grant so much, but he does admit 
that such a privilege is minus strictum. Can it be that 
privileges beyond the law formed a class of privileges 
distinct in themselves, a division which could be ac- 
commodated to privileges only in a broad sense? 

Suarez is logical in maintaining that all privileges 
are in some way beneficia principis.: He thinks that the 
whole discussion may be merely concerning a name. This 
is true if the origin alone of privileges be the point of 
discussion. Beyond this Suarez’s contention can hardly 
be admitted. The use of the two classes of privilege 
have little in common. Besides this, the question of in- 
terpretation brings the difference into bold relief. Privi- 
leges contrary to the law are to be strictly interpreted,” 
while privileges beyond the law are to be interpreted 
broadly. Such wide divergence can scarcely be called 
iquestio de nomine. 

A consideration of the opinions set down seems to 





19 Wernz, o.c., v. I, n. 158, ft. 15. 

20 The same doctrine is held today by De Meester, o.c., n. 305. 

21 Suarez, o.c., Le. 

22 Reiffenstuel, o.c., lib. V, tit. XX XIII, n. 9; girmaaes 0.c., lib. V, 
tit. XXXII, n. 58. 


Principles of Privilege According to the 145 
Code of Canon Law 


reveal that before. the Code privileges beyond the law 
held a somewhat indefinite position. Midway between 
a privilege contrary to the law and beneficium principis 
would probably be the proper place for a privilege be- 
yond the law. Yet even this juxtaposition can hardly be 
urged too strongly for an examination of privileges be- 
yond the law shows that they tend to one or the other of 
the extremes, either they will lean toward a privilege 
contrary to the law, or they will suggest beneficium 
princtpis. 

In order to observe the tendency towards privileges 
contrary to the law, it is necessary to consider the uni- 
versal and exclusive binding-force of the law itself. In 
the laws which concede powers of absolving, or dispens- 
ing, the beneficiaries are determined. Should this power 
be granted to one not comprehended in the law, radi- 
caliter the concession is in some way contrary to the law, 
and not merely beyond it. But if consideration be re- 
stricted to the immediate characteristic of this concession 
of power, Reiffenstuel’s definition of a privilege bevond 
the law can be accepted because the new beneficiary is 
not one of those to whom the law itself concedes the 
power of absolving, or dispensing.”* 


On the other hand, a privilege beyond the law may 
tend toward the concept of a pure beneficium principis. 
This is revealed in the nature of such concessions as 
faculties to bestow special blessings. 


For practical purposes, considering the almost unani- 
mous grouping of powers of absolving, dispensing, and 
the like under the head of privileges beyond the law, it 
is best to retain the traditional classification, and con- 





23 Reiffenstuel, o.c., lib. V, tit. XX XIII, n, 7. 


146 Principles of Privilege According to the 
Code of Canon Law 


tinue to refer to such concessions as privileges beyond 
the law. 


The new Code does not settle the discussion concern- 
ing privileges beyond the law. But, while the use of the 
word accensentur (accenseo) to reckon in addition, to 
add to,** does not definitely place privileges beyond the 
law in the category of privileges properly so-called, it 
does show that the mind of the legislator leans toward 
this classification. And more: the use of the term 
praeter wus would seem to approve this class of privileges. 
Thus from authentic usage the continued and legitimate 
use of the classification can be maintained. 


With the completion of the foregoing discussion, the 
question arises what faculties are to be numbered among 
the privileges beyond the law. A faculty can be actual, 
or habitual according to the duration of the power con- 
ceded. Canon 66, § 1 limits the terminology of privilege 
beyond the law to habitual faculties. Which faculties are 
to be considered in this light are enumerated, viz., facul- 
ties coneeded in perpetuity, or for a definite time, or, 
finally, for a certain number of cases. Faculties conceded 
in perpetuity can hardly be understood properly of per- 
sonal faculties. While it is true that a personal faculty 
may be said to be perpetual in the sense that it may 
last as long as the grantee lives, yet such perpetuity is 
only relative. A faculty conceded for a definite limit 
of time, or for a certain number of cases may be either 
personal or real, 2 e., attached to the position of the 
Ordinary. The rescript will usually settle doubts. But 
if the rescript should not be explicit, the second para- 
graph of canon 66 will settle the matter. 





24 John White, Latin-English Dictionary, v. accenseo, (New York, no 
date). 


Principles of Prwilege According to the 147 
Code of Canon Law 


Canon 66,§ 2. Nisi in earum concessione electa, fuer- 
it industria personae aut aliud expresse cautum sit, facul- 
tates habituales, Episcopo aliisve de quibus in can. 198, 
§ 1 ab Apostolica Sede concessae, non evanescunt, reso- 
luto iure Ordinarii cui concessae sunt, etiamsi ipse eas 
exsequi coeperit, sed transeunt ad Ordinarios qui ipsi in 
regimine succedunt; item concessae Episcopo competunt 
quoque Vicario Generali. 


When Putzer published his commentary on Apostolic 
Faculties” such grants were considered practically in the 
light of personal privileges. Unless special mention of 
communication, or sub-delegation were made, the facul- 
ties had to be exercised personally. The further conclu- 
sion was that such faculties could not pass to successors 
in office. There was indeed a restricted communication 
allowed but it concerned the missionaries who labored 
in places where the exercise of the Catholic religion was 
forbidden. This concession read: Communicandi has 
facultates in totum vel in partem, prout opus esse secun- 
dum eius conscientiam indicaverit, sacerdotibus idoneis 
in conversione animarum laborantibus, in locis tantum 
ubi prohibetur exercitium catholicae religions.*® The 
Sacred Penitentiary, answering a request that an inter- 
pretation be given concerning a particular case in France, 
and in Hurope generally, replied that the Bishop should 
consult the Congregation of the Inquisition. 


In 1889 the Holy Office was asked to settle a question 
in regard to habitual delegation of faculties of dispens- 
ing from matrimonial impediments in periculo mortis. 
The Holy Office would not decide the matter itself, but 
referred the request to the Pope. The Holy Father re- 
ceived the request kindly and allowed habitual delegation 





25 Konings-Putzer, o.c., n. 28-29. 
26 Coll, n, 1695. 


148 Principles of Privilege According to the 
Code of Canon Law 


to be made to parish priests only (not to all approved 
confessors), provided there would not be sufficient time 
to approach the Ordinary, and at the same time a danger 
existed in delay.?’ 

On November 24, 1897, the Holy Office, considering 
the circumstances of the times, determined to petition the 
Pope to declare that habitual matrimonial faculties con- 
ceded to Ordinaries** did not cease with their death, or 
loss of office, but instead passed to their successors in 
office. Pope Leo XIII acceded to the petition; atque ita 
perpetuis futuris temporibus servandam mandavit, con- 
trarus non obstantibus quibuscumque.” Immediately 
the question arose concerning faculties conceded to 
Bishops anterior to this decree. Were they to be con- 
sidered as attached to the office of the grantee rather 
than to his person? The Holy Office decided that the ex- 
tension of Pope Leo XIII was to include the faculties 
granted before November 24, 1897,°° facto verbo cum 
Sanctissimo. . 

The Holy Office made a further concession on De- 
icember 14, 1898. To the question: An possit Episcopus 
diocesanus subdelegare, absque specialt concessione, suis 
Vicarus Generalibus aut alus ecclesiasticis viris modo 
generali, vel saltem pro casu particulari, facultates ab 
Apostolica Sede sibi ad tempus delegatas, the Holy Office 
replied Affirmative, dummodo id im facultatibus non pro- 
hibeatur, neque subdelegandi ius pro aliquibus tantum 
coarctetur; in hoc enim casu servanda erit forma 
adamussim Rescripti.** 

27 Coll. n. 1698. 

28 The word ‘‘Ordinary’’ was used according to the decree of February 
20, 1888, (Coll. n. 1685). Appellatione Ordinarit venire Episcopos, 
Administratores seu Vicarios Apostolicos, Praelatos seu Praefectos 
habentes surtsdictionem cum territorio separato, eorumque officiales 
seu Vicarios in spirttualibus generales, et sede vacante Vicarium 


Capitularem et legitimum Administratorem. 
29 Coll. n. 1985. 


80 Coll. ft. to n. 1985, June 23, 1898; Coll. n. 2094, September 5, 1900. 
81 Coll. n. 2029, 


Principles of Privilege According to the 149 
Code of Canon Law 


The continuation of faculties conceded to Ordinaries 
of a place, but limited to a definite time was provided for 
in the decision of the Holy Office under the date of May 
3, 1899.° Towards the end of the same year, December 
20, 1899, an extension was asked for the faculties of all 
superiors. The Pope, thru the Holy Office, granted the 
extension ad Superiores generales Ordinum  religio- 
sorum.,*3 


The legislation of the new Code incorporates the 
ruling of the Holy Office of November 24, 1897. The gen- 
eral principle to be followed, then, is that habitual facul- 
ties do not cease with their grantee’s loss of power. The 
Code refers to the list of those whose faculties enjoy this 
continuance. Canon 198, $1 states who are the Ordinaries 
in law. Besides the Roman Pontiff, such Ordinaries are 
residential Bishops, Abbots and Prelates nullius, to- 
gether with Vicar Generals, Administrators, Vicars and 
Prefects Apostolic.** All these are Ordinaru locorum. 
In addition to these Ordinaries are to be considered the 
major Superiors of exempt clerical religicus. Canon 
488, n. 8 specifies who are major superiors. ‘They are: 
Abbot Primates, Abbot Superior of a monastic congrega- 
tion, Abbot of a monastery swe iris even if it belongs toa 
monastic congregation, Supreme Moderator of a religion, 
Provincial Superior, their Vicars and, lastly, those who 
have provincial power ad wmstar. 


The resoluto iure Ordinarit may occur in several 
ways. Death, removal, renunciation of office, all may dis- 
solve the connection between an Ordinary and his office. 
Suspension, however, does not dissolve this link, but 
merely holds it in abeyance until the penalty is removed. 





82 Coll. n. 2045. 

83 Coll. n. 2074. ; 

84 To these Ordinaries must now be added the Vicar Delegates, instituted 
by Pope Benedict XV, AAS. v. XII, p. 120. 


150 Principles of Privilege According to the 
Code of Canon Law 


Similarly exile, and physical incapacity do not cause loss 
of jurisdictional power.” 

The continuity of faculties is not broken even if the 
Ordinary began to exercise his faculties before he lost 
his office. 

With the loss of the Ordinary’s power, faculties pass 
to his successor in office. The constitution of a diocese, 
vicariate, or prefecture will determine the Ordinary’s 
successor. In places where a cathedral chapter is erected, 
the immediate successor of the Ordinary will be the same 
cathedral chapter.*® The Canons of the cathedral chapter 
enjoy succession until they have elected a Vicar Capitular. 
This must be done within eight days ab accenta notitia 
vacationis.” Where no cathedral chapter exists, the 
power of the Ordinary passes to the body of diocesan 
consultors.*? They, too, enjoy succession until they have 
elected an Administrator. This also must be done within 
eight days ab accepta notitia vacations. In vicariates 
and prefectures, provided no Co-adjutor with right of 
succession is named, the successor of the Vicar, or Pre- 
fect will be the pro-Vicar, or pro-Prefect.*® These latter 
officials have no ordinary power as long as the Vicar, or 
Prefect retains his office. Accordingly, the pro-Vicar, 
and the pro-Prefect are not the same as the Vicar Dele- 
gate conceded by Pope Benedict XV.* 


In an abbey, or a prelacy nullius succession devolves 
upon the religious chapter, should the benefice pertain to 
the religious. The constitutions of the religious, how- 
ever, may legally dispose otherwise. If the prelacy be- 
longs to seculars, the canonical chapter or its equivalent 
succeeds. Both the religious, and the canonical chapters 





85 Can. 429. 

86 Can. 431, §1; can. 435, $2. 

87 Can. 432, § 1. 

38 Can. 427. 

39 Can. 309, $2. 

40 Winslow, Prefects and Vicars Apostolic, (New York, 1924) p. 65-74. 


Principles of Privilege According to the 151 
Code of Canon Law 


must elect a Vicar Capitular within eight days. During 
the interim, the chapter enjoys the jurisdiction of the 
Ordinary.*! 

These are the ordinary methods of succession. In 
addition to these the Code provides for two unusual con- 
tingencies. Canon 431, §2 concedes the power of Vicar 
Capitular to the Archbishop, or Bishop who may have 
been named by the Holy See, as Administrator of a 
vacant diocese. Canon 309, §4 supposes the non-existence 
of a pro-Vicar, or a pro-Prefect. In this case the senior 
priest of the vicariate, or prefecture succeeds in office. 
This seniority is determined both by actual residence 
in the territory, and from the time when the proper 
letters were first exhibited. Should two or more priests 
enjoy the same seniority, the successor of the Ordinary 
will be selected according to seniority of ordination. 

Canon 66, § 2 makes two exceptions to the general 
principle concerning the continuation of faculties. First, 
the rescript containing the habitual faculties may stipu- 
late that the concession lapses with the death, removal, 
etc., of the grantee. Or, secondly, habitual faculties may 
be conceded to an Ordinary because of some special merit, 
or uncommon qualifications which the grantee possesses. 
Such concessions are called industria personae.” 

The first exception to the general principle requires 
no comment. The rescript must be examined for possible 
clauses restricting the continuation of the faculties. But 
the second exception to the general principle entails some 
explanation. How is the peculiar nature of the faculties 
granted industria personae to be recognized? 

It has just been observed that faculties granted in- 
dustria personae are conceded to an individual Ordinary 
for reasons of his unusual merit in some special field of 
activity. What would influence the grantor to concede 





41 Can. 327, $1. 
42 Blat, o.c., v. I, n, 134, 


152 Principles of Privilege According to the 
Code of Canon Law 


such peculiar faculties will vary in different circum- 
stances. Detailed and exact knowledge will offer a rea- 
son in one case, uncommon cireumspection in another. In 
a word, personal merit of a high and unusual caliber will 
supply a reason. 

What must be noticed in faculties of this kind is 
that the personal fitness of the grantee is emphasized. 

With these thoughts in mind it is not difficult to see 
why faculties conceded industria personae do not pass 
to a successor in office. With the grantee’s loss of power, 
the faculties cease. The reason of this cessation is to 
be found in the restricted will of the legislator rather 
than in the successor’s possible deficiency in regard to 
unusual merits. If, in point of fact, a suecessor should 
possess the same, or even greater qualities, the faculties 
would cease even in this case because of the personal 
element of the predecessor’s faculties. 

Faculties granted industria personae will contain ex-— 
pressions which will leave no doubt, ordinarily speaking, 
of their nature. Such expressions as propter profundam 
scientiam qua polles m re, or committimus prudentiae 
tuae eximiae leave little doubt of the personal nature of 
the faculties. But the mere reference to prudentia does 
not imply the same thing as prudence is expected in every 
Superior. Neither would the mere mention of the 
Bishop’s name always signify that his faculties were 
granted industria personae.* 

Since the personal element is a restriction placed 
on the use and continuation of habitual faculties, proof 
must be adduced to demonstrate this restriction. The 
presumption is in favor of the continuation of faculties, 
resoluto ture Ordinaru.* 

The Code makes no provision for the continuation of 
faculties granted to Superiors of non-exempt religious. 





43 Maroto, o.c., v. I, n. 294. 
44 Maroto, o.c., l.c., Ayrinhac, o.c., n. 171, 


Principles of Privilege According to the 158 
Code of Canon Law 


Maroto* considers these faculties to continue if they 
were granted to the Superiors without mentioning their 
name. In this case the faculties would be real, not per- 
sonal. But if the name of the Superior were mentioned 
together with his dignity, the faculties would be personal 
and cease with the office of Superior. Maroto hesitates 
to urge the last provision in an unqualified statement. 
Perhaps, he says, even then the faculties may appear to 
be real, and not personal faculties. Cocchi does not com- 
mit himself but cites Maroto’s opinion. However, he 
adds that not a few authors maintain the dignity over- 
shadows the name of the Superior and, hence, the faculties 
can be considered as real and as passing to successors in 
office.*® 


In the absence of positive legislation on this point, 
recurrence is to be made to similar legislation.*’ There- 
fore, it may be assumed that the personal element of 
faculties granted to Superiors of non-exempt religious 
must be proved. Otherwise, the faculties may be con- 
sidered as real, and, hence, as passing to successors 
in office, according to the provision of canon 66, § 2. 
The mere mention of the Superior’s name can hardly 
be sufficient evidence of a faculty granted industria per- 
sonae. Something more specific, as expected for Ordi- 
naries, would be required. 


The faculties conceded to a Bishop are likewise to 
be understood of the Vicar General. The origin of the 
Vicar General is not undisputed. Wernz seeks his origin 
in the offictalis principalis,*® while Fournier sees his 
first appearance in the procurator general. Which- 





45 Maroto, o.c., Le. 

46 Cocchi, o.c., v. I, n. 123. 

47 Can. 20. 

48 Wernz-Vidal, De Personis, (Romae, 1923) n. 

49 Fournier, Les Origines du Vicaire General, (Paria, 1922) p. 73. 


154 Principles of Privilege According to the 
Code of Canon Law 


ever origin may finally be accepted, it is certain that 
the office developed greatly during the years 1234-1298."° 

The present discipline concerning the Vicar General 
is found in canons 366-371. Formerly, a residential 
Bishop, or Abbot, or Prelate nullaus were the only ones 
who could nominate a Vicar General. But Pope Ben- 
endict XV granted a similar right to Vicars and Pre- 
fects Apostolic. The new officials were to be called Vicar 
Delegates, and were to have practically the same power 
as Vicar Generals.” 

Briefly, the Vicar General is competent, by ordinary 
power, in everything that pertains to the jurisdiction 
of his Bishop unless the Code demand a special man- 
date, or the Bishop himself reserve some power.” Un- 
less the contrary is evident, a Vicar General can execute 
Apostolic rescripts committed to his diocese.*? Ordina- 
rily, the Vicar General should not be nominated a judge. 
A paucity of trials, or the small size of the diocese may 
excuse from this recommendation of the Code. 


In what faculties conceded to a Bishop, are the Vicar 
Generals similarly competent? Undoubtedly all the 
habitual faculties which the Bishop enjoys, unless the 
rescript determine otherwise, or the faculties be con- 
eeded to the Bishop mdustria personae. Theoretically 
the two exceptions may be considered separately, but 
practically they amount to the same thing. The rescript 
will reveal whether or not the personal characteristics 
and qualities of the Bishop are responsible for the facul- 
ties. Just as for non-continuation, so also for exclusive 
use this industria personae must be proved. The pre- 
sumption is that the faculties are conceded to the Ordi- 





50 Wernz-Vidal, o.c., lc. 

51 Wernz-Vidal, o.c., n. 636. 
52 Can. 368, § 1. 

53 Can. 368, § 2. 

54 Can. 1573, $1. 


Principles of Privilege According to the i 
Code of Canon Law 


Or 
qr 


mary as such without any special emphasis on the 
Bishop’s personal qualifications. 

Can a Bishop restrict the faculties to his own per- 
sonal execution? Obviously if the faculties were granted 
to him industria personae, or if the rescript plainly so 
state, he must do so. In regard to the other habitual 
faculties, the Bishop is powerless to restrict the Vicar 
General in the use of the faculties. The argument from 
ithe restriction which a Bishop may lawfully put upon 
his Vicar General,” will not hold in the case of faculties. 
The former is ordinary jurisdiction *® and the Bishop is 
empowered to limit it: the latter is a privilege granted 
by the Holy See in which the Bishop is granted no limit- 
ing powers. The Code says expressly without limitation, 
atem concessae (facultates habituales) competunt quoque 
Vicario Generali. 

A Vicar General, however, who is the alter ego of 
the Bishop of the diocese, should use the faculties accord- 
ing to the legitimate wishes of the Bishop. But if the 
Vicar General does not act in this way, his acts are valid, 
no matter how many restrictions the Bishop of his own 
accord may place on the use of the faculties. 


Canon 66, § 3. Concessa facultas secumfert alias 
quoque potestates quae ad illius usum sunt necessariae; 
quare in facultate dispensandi includitur etiam potestas 
absolvendi a poenis ecclesiasticis, si quae obstent, sed ad 
effectum dumtaxat dispensationis consequendae. 


A brief reference to the efficient cause of a privilege 
iis necessary. It is the will of the legislator, or Superior 
which attributes power, or efficacy to a privilege. In 
most instances a Superior will couch his concession in 
explicit terms so that the extent of the power granted 
can easily be understood. In the case of habitual facul- 


55 Can. 368, $1. 
56 Chelodi, o.c., n. 200, 


156 Principles of Privilege According to the 
Code of Canon Law 


ties, the power connected with the exercise of a faculty 
is extended to include other powers which may be ac- 
cessory but necessary to the use of the faculty. 

The footnotes in the Code to canon 66, § 3 refer to 
Rules 35, 42, 53, and 80 in Sexto Bonifacii VIII. The 
gist of all four rules is contained in the first part of 
canon 66, § 3. Even before the Pontificate of Boniface 
VIII, Pope Alexander III several times conceded all nec- 
essary powers to fulfill a delegation in judicial cases.*” 
There never was any real denial of the principle: Cw 
licet quod est plus, licet utique quod est minus.®® The 
concession of power over interfering persons, or circum- 
stances sometimes was so explicit that, at first sight, no 
legitimate proportion seems to exist between judge and 
accused. Witness the power which Alexander III con- 
cedes in a letter to the Bishop of Chartres. By this 
letter a delegated judge, because of the august person- 
age he represents, enjoys the power of compelling with - 
penalties even a Bishop, or a higher dignitary.*® Calm 
judgment, however must guide a judge in these matters. 
Pope Alexander III emphasized this point in the same 
letter to the Bishop of Chartres: wudex secundum negoti 
qualitatem temperate procedens. 

Blat says® that the implied faculties of canon 66, 
§ 3 are conceded according to the nature of the faculty 
which is expressly granted. This is true, but the use of 
the word ‘‘object’’ (obtectwm) rather than ‘‘nature’’ 
(natura) would obviate difficulties. ‘‘Natura’’ consid- 
ers the juridical and philosophical notions which enter 
into the composition of a faculty. In this sense there 
is no difference between faculties, as, for instance, be- 





57 C. 1, 5, 11, X, de officio et potestate iudicts delegati, I, 29. 

58 R.J.53 in VI. The other rules referred to in the footnote to canon 66, 
3, are: Regula 35, Plus semper in se continet quod est minus; 
Regula 42, Accessorium naturam sequi congruit principalis; Regula 
80, In toto partem non est dubiwm contéineri. 

59 C. 11, X, de officio et potestate iudicis delegati, I, 29. 

60 Blat, o.c., v. I, n. 134. 


Principles of Privilege According to the 157 
Code of Canon Law 


tween judicial and administrative faculties. ‘‘Obiectwm,’’ 
however, considers the external qualities of a faculty. 
Thus faculties may be judicial, administrative, pro foro 
anterno, pro foro externo, etc. 

The use of implied powers must be limited to those 
that are necessary for the valid and licit use of the fac- 
ulty itself. To go beyond this would be to extend one’s 
jurisdiction contrary to the will of the Superior who 
granted the faculty. Since such excesses are not allowed, 
the unauthorized acts would be invalid.® 

Canonical equity must also be taken into considera- 
tion in the use of implied powers. Therefore, reason- 
able exceptions according to law must be admitted.® 
! The Code itself illustrates the concession of acces- 
sory but necessary faculties in the execution of a dispen- 
sation. The implication is that absolution from censure 
is considered to be a minor element in relation to the use. 
of the faculty itself. Strictly speaking, absolution from 
censure, and fruition of a dispensation are not in the 
same category. But because of the efficacious will of 
the legislator, everything necessary for the valid and 
licit use of a faculty is conceded. Yet it must be borne 
in mind, as the Code specifically declares, the absolution 
from penalties can be given only in direct relation to 
ithe execution of the faculty. 

In the case of matrimonial faculties, the Sacred Con- 
gregation of the Propaganda gave a decision on Septem- 
ber 26, 1821.°° The question concerned the possibly nec- 
essary absolution from the censure of major excommu- 
nication. The doubt was proposed concerning both the 
internal and the external forum. The Congregation de- 
cided that an absolution ad cautelam must be given in 
the internal forum, but that a new faculty for the exter- 





61 C. 11, de rescriptés, I, 3 in VI. 
62 C, 13, 15, X, de officio et potestate iudicis, I, 29. 
63 Coll. n. 769, 


158 Principles of Privilege According to the 
Code of Canon Law 


nal forum would be necessary. The latter stipulation 
may seem to be an undue restriction, but such is not 
really the case. It is merely an exemplification of the 
principle that public penalties should cease in some pub- 
lic way so that a public scandal may be properly repaired. 
On July 2, 1891,°* the Sacred Penitentiary praised an 
Ordinary who followed the practice of the Sacred Peni- 
tentiary, and the Apostolic Datary in prefixing an abso- 
lution from censures ad cautelam. 


The importance of a previous absolution from cen- 
sure was founded upon the inability which such a pen- 
alty caused. Until 1918, heretics, schismatics, false and 
recalled procurators, excommunicated persons excom- 
municatione maiore were excluded from receiving fa- 
vors.” Pius X changed the law considerably, restrict- 
ing inability to those who were excommunicated by name, 
or who were suspended a divinis by the Holy See.®* The 
Code introduced another change®™ in the law. The pres- 
ent discipline allows everyone, even censured persons, 
to enjoy favors unless the censure (excommunication, in- 
terdict, suspension) be inflicted by a condemnatory or 
declaratory sentence.® 


The necessity, then, of previous absolution from cen- 
sure is considerably diminished at the present time. All 
undispensed vindictive penalties will not invalidate fa- 
vors, nor unabsolved censures where no sentence has 
intervened. It is evident that the implied faculties con- 
eeded in canon 66, § 3 are not as essential to the dispen- 
sation as formerly.” 





64 Coll. n. 1759. 

65 Wernz, o.c., v. I, n. 151. 

66 Ordo servandus in 8. Congregationibus, Tribunalibus, Officiis Romanae 
Curiae, 29 Sept., 1908, Pars II, Normae peculiares, cap. III, n. 6, 
A.A.8., v. I, p. 64. 

67 Can. 36, § 2. 

68 Can. 2265, § 2; 2275, $3; 2283. 

69 Vermeersch-Creusen, o.c., v. I, n. 133, 


Universitas CaTHoitica AMERICAE 
WasuHinetonn, D. C. 
Facuttas luris CANonicr 
1925-1926 
No. 39 


[ 159 ] 





DEUS LUX MEA 


THESES 


QUAS 
AD DOCTORATUS GRADUM 


IN 


IURE CANONICO 


Apud Universitatem Catholicam Americae 


CONSEQUENDUM 


PUBLICE PROPUGNABIT 


EDUARDUS G. ROELKER, §. T. D., J. C. L., 
SACERDOS ARCHIDIOECESIS CINCINNATENSIS. 


HORA IX-XJ, A.M. DIE XXIX MAII A.D. MCMXXVI. 





[ 161] 


XII. 


XIII. 


XIV. 


XV. 


XVI. 


. Canones 17-20. 


Canon. e-Luo: 


. Canon = 106. 


. Canones 248, 255. 


Canones 329-332. 


Canones 339, 466. 


Canones 340-342. 


Canones 350-355. 


. De Ecclesia ut Societate. 

. De Elemento Aristocratico in Heclesia. 
. De Regio Placet. 
. De Status Separatione ab Ecclesia. 
. De Concordatis. 
. De Sexto Bonifacii VIIL. 
. Canones 12-14. 


De Subiecto Legis 
Ecclesiasticae. 
De Interpretatione 
Legum. | 
De Validitate actus 
Superioris abs- 
que Consensu vel 
Consilio aliqua- 
rum Personarum. 

De Inre Praeceden- 
tiae. 

De S. C. Consistor- 
iali, et de S. C. 
pro Negotiis ec- 
elesiasticis extra- — 
ordinarlis. 

De Nominatione et 
Dotibus Episcopi. 

De Applicatione 
Missae pro Pop- 
ulo. 

De Relatione super 
Statu Diocesis, et 
de Visitatione ad 
limima. 

De Coadiutoribus et 
Auxiliaribus Epis 
coporum. 


Canones 464-5, 467-470. De praecipuis Obli- 


[ 162 ] 


gationibus Paro- © 
chorum. 


XVII. 
XVIII. 


XIX. 


XX. 
XXI. 
oe 
XXITI. 
XXIV. 


XXV. 


XXVI. 
XXVIII. 


XXVITI. 


Canones 487-491. 


Canones 520-521. 


Canones 542-552. 


Canones 572-573. 


Canones 574, 577-578. 


Canones 579-583. 


Canones 845-852. 


Canones 901-907. 


Canones 973-982. 


Canones 1002-1005. 


Canones 1074-1075. 


Canones 1128-1132. 


[ 163 ] 


De Religiosis in 
genere. 

De Confessario or- 
dinario, speciali, 
et extraordinario. 

De Requisitis ut 
quis in novitiatum 
admittatur. 

De Requisitis ad va- 
liidam Profes- 
sionem __religio- 
sam. 

De Votis tempor- 
ariis ante Profes- 
sionem __ perpet- 
uam. 

De Voto Pauperta- 
tis quoad Profes- 
sionem simplicem 
et solemnem. 

De Ministro Sacrae 
Communionis. 

De Subiecto Sacra- 
menti Poeniten- 
tiae. 

De Requisitis in 
Subiecto Sacrae 
Ordinationis. 

De Ritibus et Cae- 
remonlis sacrae 
Ordinationis. 

De Impedimentis 
Raptus et Crimi- 
nis. 

De Separatione T'o- 
ri, Mensae,_ et 
Habitationis. 


XXIX. Canones 1197-1202. 


XXX. Canones 1613-1614. 


XXXI. Canones 1636-1639. 
XXXII. Canones 1789-1791. 
XXXIIL. Canones 1812-1818. 


XXXIV. Canones 1960-1965. 


XXXV. Canones 1986-1989. 


XXXVI. Canones 2186-2194. 


XXXVII. Canones 2217-2219. 


XXXVIII. Canones 2286-2290. 


XX XIX. Canones 2306-2313. 


[ 164 ] 


De Altaribus. 

De Causis a Indice 
non suscipiendis 
et de Iudice sus- 
pecto. 

De Loco et Tempore 
Tudicii. 

De Testimoniorum 
Fide. | 

De Natura et Fide 
Instrumentorum. 

De Foro competenti 
in Causis Matri- 
monialibus. 

De Appellationibus 
in Causis Matri- 
monialibus. 

De Modo proceden- 
di in Suspensione 
ex informata Con- 
scientia infligen- 
da. 

De Poenarum Spe- 
ciebus, Interpre- 
tatione atque Ap- 
plicatione. 

De Poenis vindica- 
tivis in genere. 
De Remediis poe- 
nalibus et de 

Poenitentiis. 


* 


ROMAN LAW 


. Sources and Division of Codex Iuris Cwilts. 
. Enslavement. 

. Release from Slavery. 
. Position, Duties and Rights of Colonus. 
. Non-Cwes. 

. Modification of Personality. 
. Extinction of Personality. 
. Origin of Citizenship. 

. Concept, Form and Conditions of Matrimony. 
. Tutelage in Roman Law. 
. Possession. 


INTERNATIONAL LAW. 


. Meaning of International Law. 

. Sources of International Law. 

. General Rights of States. 

. Self-preservation and Intervention. 
. Immunity. 

. Consuls. 

. Extradition. 

. Piracy. 

. Drago Doctrine. 

. Monroe Doctrine. 


* * * aE 


Vinir Facuntas: 


PeoIPePUS: BERNADINI,’S, Te. DJ. U2 D., 
Decanus. 

H. LUDOVICUS MOTRY, 8S. T. D., J. C. D., p. t. a 
Secretis. 


Vinit Rector UNIvVERSITATIS: 
tTHOMAS J. SHAHAN, S. T. D., J. U. L. 


[ 165 ] 


VITA. 


Edward G. Roelker was born in Cincinnati, Ohio, 
August 16, 1897. After attending the parochial school 
of Saint Mary he entered Saint Francis Xavier High 
School and College in Cincinnati. In 1918 he entered 
Mount Saint Mary of the West Seminary, and a year 
later entered the North American College, Rome, Italy. 
On May 26, 1923, he was ordained to the Holy Priesthood 
and in June, 1924, was awarded the Degree of Doctor 
of Theology. 


Father Roelker entered the Catholic University of 
America in September, 1924, to pursue a post-graduate 
course in Canon Law. Father Roelker extends his sin- 
cerest thanks to the professors who have assisted him 
with their kind suggestions. The writer also wishes to 
thank the assistant librarian for the freedom accorded 
him in consulting the valuable works of the Uae 
Library. 





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